Gregoire's staffers then took a few months to release the final document – claiming a right of executive privilege – although they did respond more quickly with more than 350 pages of other state documents West asked for.
The appellate ruling, which upholds a $25 per day fine against the governor's staff, comes on the eve of a Supreme Court battle next week over the larger question - whether any Washington governor has an executive privilege to make records secret under Washington’s law or Constitution.
The Freedom Foundation based in Olympia has brought the latter case, which is a direct challenge of Gregoire’s assertion of privilege. The high court is scheduled to hear arguments next Thursday, Sept. 20.
Michael Reitz, a lawyer for the foundation, which is libertarian-oriented think tank, says the privilege claim is an assertion of power that is not delineated in the Constitution or state law. Gregoire’s attorneys disagree, and Reitz says the Democratic governor has asserted that right to block the release of records on everything from the Alaskan Way Viaduct replacement to tribal gambling compacts, judicial appointments, even rules for marijuana.
The document denied to West was a three-page briefing prepared for the governor by then-policy aide Kathleen Drew, who now is running for secretary of state. The briefing was described as a “governor’s meeting memorandum” in preparation for a meeting with leaders of the Washington State Association of Counties.
In the original April 2010 ruling on West's request, Thurston County Superior Court Judge Paula Casey said that the record denied to West could not have legally been kept secret, even if the governor actually had an executive privilege under the law. Judge Casey also found it was inexcusable that governor's aides failed to respond to West's request in the first five days, as required by law. After deducting delays West contributed to, Casey calculated the penalty based on 87 days of wrongful withholding.
In the appellate ruling made public Tuesday, Court of Appeals Judge Joel Penoyar affirmed Casey’s findings.
Gregoire spokeswoman Karina Shagren said it was not immediately clear if Gregoire would appeal the appellate court's ruling. But she said their office has already paid the fine, court costs and interest – all in the sum of $2,652.96 - to West.
West is no stranger to records requests and has won monetary sanctions against the Port of Olympia in other cases. He referred a reporter's questions to his attorney, Stephanie Bird, who said it is unlikely that West will appeal.
“He’s happy that the $25 per day penalty was upheld by the court, because the Attorney General’s Office tried to get that reduced,’’ Bird said, adding that “it is very likely this is the end of the road.”
In her lower court ruling, Casey found the governor’s office had acted in good faith on its assertion of a right of privilege, and she calculated that the memo was denied effectively for 87 days.
But she declined to rule on West’s request to consider the legality of the privilege claim itself, finding the document in question clearly would not have qualified for a shield from disclosure. West then appealed the Casey’s ruling, believing the fines were too low and also that she should have taken up the legitimacy of executive privilege.
Gregoire also appealed, and her lawyers argued unsuccessfully for lower fines, citing cases where daily fines of $8 and $10 were levied.
Bird said she is representing West in another records case in which the Governor’s Office also cited privilege in denying him records.
They are waiting to get a date before the Supreme Court once it rules in The Freedom Foundation's case.
Despite Gregoire’s assertion of privilege, and despite lower courts siding with the governor, both gubernatorial candidates – Democrat Jay Inslee and Republican Rob McKenna – said in June they would not personally invoke privilege if elected.
“From what I know right now, I would not intend to exercise executive privilege unless or until it was delineated by the Legislature or a vote of the people,’’ Inslee said in an interview with The Olympian, adding that he did not know all the details of the legal case. “What we’re talking about is the public trust in the system and that should be jealously guarded ... Close calls go in my book to public disclosure.’’
McKenna is attorney general and his agency were defending Gregoire’s claim to privilege at the Supreme Court. He declined to talk about the cae but said flatly at the time that he would not claim privilege in order to shield the release of records as governor. Instead McKenna said he would rely on existing records law and any exemptions written into it.
He did not elaborate and said he could not talk about the case itself.
Stay tuned.
