The Public Records Act says: “The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”
According to the Freedom Foundation, an Olympia-based libertarian think tank formerly known as the Evergreen Freedom Foundation, Gov. Chris Gregoire has refused to turn over public records on more than 500 occasions in the last four years. Gregoire claims that she has an “executive privilege” to withhold public documents.
The Public Records Act has more than 300 exemptions but “executive privilege” is not one of them. That’s why the Freedom Foundation has filed suit against the governor questioning her ability to deny public record requests based on executive privilege.
Good for the Freedom Foundation. This issue has been hanging around for years, so it’s important to get the courts to settle the matter once and for all.
The Freedom Foundation contends that executive privilege should only cover communication between Gregoire and her closest aides. Foundation attorneys claim she has expanded that to a far broader category of records.
In their favor is the provision of the Public Records Act that says the disclosure law is to be interpreted broadly and any exemptions are to be interpreted narrowly, ensuring public disclosure whenever possible.
“What the governor’s office is doing by invoking executive privilege really frustrates the goal of accountable government,” said Mike Reitz, attorney for the foundation in the lawsuit. “It goes beyond what people would normally think of as executive privilege and what it should rightfully protect.”
It’s not surprising that Narda Pierce, general counsel for Gregoire, sees things differently. She says executive privilege encourages the governor’s policy advisers to speak openly without fear of reprisal.
“We have made the decision and have tried to protect the candor that helps to ensure good information and decision-making, while also releasing portions of the documents or releasing them at a certain point in time when we feel that release doesn’t threaten those core values,” Pierce said.
She questions the foundation’s claim that the governor has invoked executive privilege 500 times in four years. Many of those cases were requests for documents regarding Indian gaming negotiations at a time when talks were ongoing, and the governor’s office also cited deliberative process as a reason for withholding. Deliberative process is a legal exemption that protects records involved in policy-making at the time decisions are being made. Once the policy is in place, records are typically released, which is what the governor did with many requests from the gaming negotiations, Pierce said.
The records at stake in the lawsuit were requested by a political writer with the foundation last April and concerned a variety of subjects, including documents on the Columbia River hydro project, the Alaskan Way Viaduct replacement options and medical marijuana legislation.
For many of those requests, large sections of the records were released, and explanations given for the portions withheld, Pierce said.
The lawsuit seeks the release of all requested records in unredacted form, as well as monetary penalties for the public records violation.
The state Supreme Court has not ruled on the executive privilege question directly. But it should be noted that in a 1986 ruling, the state’s highest court said that the judiciary is not included within the reach of the Public Records Act based on the separation of powers. That’s the same argument Gregoire’s attorneys will make as defenders of the executive branch of government.
According to Pierce, there are 35 documents being withheld by the governor on the basis of executive privilege alone, with 15 more where another exemption is also claimed. That’s not a lot considering the number of public records requests the governor’s office receives.
But clarity on the governor’s executive privilege claim is needed. A Supreme Court decision on the Freedom Foundation’s lawsuit will provide that clarity.
