Published September 27, 2012
2 cases threaten public’s right to government transparency
The 40-year tradition of government transparency in Washington came under attack recently on two separate fronts. Both cases should worry those who already fear a slide toward less openness since public records and open meeting laws were enacted in 1972, assuring citizens transparency and access to government records. Earlier this month, the Economic and Revenue Forecast Council violated the Open Public Meeting Act by holding a closed-door meeting with a quorum of members without public notice, and making a final decision to hire a new permanent director. According to Toby Nixon, president of the Washington Coalition for Open Government, even if the council had followed the rules by giving notice of an executive session, “There is absolutely clear case law that they can’t make the final decision in executive session ... They clearly violated the open meetings act.” It’s inexcusable that elected officials ignore or don’t understand our state’s open public meeting laws. More recently, Gov. Chris Gregoire’s office lost a battle in the state Court of Appeals to conceal documents from an Olympia resident, and was fined $2,175. In withholding a three-page document, the governor claimed her office had “executive privilege,” and that it trumped the state’s Public Records Act. A Thurston County judge correctly disagreed with the governor. But that wasn’t the end of Gregoire’s controversial legal position. In a separate case, the state Supreme Court heard oral arguments last week about whether executive privilege for the governor exists in the Washington Constitution. Gregoire says it is implied. The Freedom Foundation, which brought the case, says the constitution leaves it out intentionally. “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,” said one of the lawyers who brought the case. “This new privilege significantly expands the governor’s ability to keep secrets from the public.” By claiming executive privilege, Gregoire turns the Public Records Act upside down. The act requires the government to prove why it shouldn’t disclose a document to the public. If the governor, or any other elected executive officer – such as the secretary of state – is allowed executive privilege, then the burden of proof shifts to the individual. That was clearly not the Legislature’s intention when it wrote these words at the beginning of the Public Records Act, “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.” The concept of executive privilege would allow the governor to decide what the public has a right to know, and what it doesn’t need to know. Even in the hands of a well-intentioned governor, that’s a dangerous power, one the public records law explicitly forbids. A state Supreme Court ruling against the governor would be a victory for public access to public records, and would advise future state leaders to more carefully protect this important Washington tradition. Fortunately, both candidates to replace Gregoire – Republican Rob McKenna and Democrat Jay Inslee – have said they would not attempt to invoke executive privilege. Voters should hold them to their words.