Thurston County Superior Court Judge Carol Murphy said that such a privilege exists, even though it is not spelled out in the state constitution.
The conservative Freedom Foundation, which challenged Gov. Gregoire in the first place, has opted to appeal Judge Murphy’s decision directly to the Supreme Court.
Let us hope that the nine justices adhere to this state’s Public Records Act, which instructs government entities to err on the side of disclosure, not secrecy, when members of the public submit a legitimate request for records.
The Public Records Act mandates that all records held by government agencies be provided upon request, unless a law specifically exempts the record from disclosure. Unfortunately, over the years lawmakers have added 300 exemptions to the disclosure act.
When requested by the Freedom Foundation to supply records on a number of hot-button issues – the replacement of the Alaskan Way viaduct in Seattle, the medicinal use of marijuana and the hydroelectric system on the Columbia River – Gregoire’s office released a portion of the records, but held others back, invoking a privilege to withhold documents based on the governor’s desire to do so.
The Freedom Foundation sued Gov. Gregoire on April 4 and in July, Judge Murphy ruled in the governor’s favor. Now the foundation has appealed.
As noted by Michael Reitz, attorney for the Freedom Foundation, Judge Murphy adopted a test for determining when executive privilege shields specific records. The Thurston County Superior Court judge said that the governor’s assertion of executive privilege creates a presumption that the records are privileged. The burden then shifts to the requester who must show a particular need for a document in order to overcome the governor’s privilege.
That turns the Public Records Act on its head and creates a dangerous precedent that we hope the nine justices on the state’s highest court will strike down.
“This new privilege significantly expands the governor’s ability to keep secrets from the public,” Reitz said. “We will argue that executive privilege is not found in the Public Records Act or spelled out in the constitution. In fact, in 120 years of statehood not a single appellate court has recognized executive privilege for the governor of Washington.”
He continued, “This case raises questions about the constitutional powers of our elected officials and the need for accountability to the people. We are especially concerned about the test Judge Murphy adopted for applying executive privilege. This test is deferential to the governor’s claims of secrecy and is inconsistent with the Public Records Act, which encourages broad disclosure of records.”
The reality is, Washington is not the only state dealing with this executive privilege issue.
New Jersey Gov. Chris Christie was sued in July over his administration’s refusal to release correspondence between the president of Fox News and the governor or his staff. The records were requested after a report surfaced that the head of the network tried last summer to persuade the Republican governor to run for president in 2012.
The American Civil Liberties Union of New Jersey filed the court challenge. The governor’s office initially refused to confirm any records existed and said that, if they did, they would be exempt from state’s open records law based on executive privilege. Gov. Christie said executive privilege is intended to protect the governor and other elected officials from disclosing records that contain advice to them about their official public duties.
Governors – whether it’s Gov. Christie in New Jersey or Gov. Gregoire in Washington – should not be able to decide what’s good for the public to know and what should be held in secrecy. Public records belong to the public and should be made available to those who request them without government interference.
Secrecy breeds division and contempt. Secrecy undermines the public’s trust in the officials who govern them.
That’s why clarity on the governor’s executive privilege claim is needed. A Supreme Court decision on the Freedom Foundation’s lawsuit will provide the justices with an opportunity to demonstrate Washington’s commitment to open, transparent government.
