A libertarian think tank on Monday sued Gov. Chris Gregoire's office for withholding public records, saying executive privilege isn't a legitimate exemption under state law.
Under the state’s Public Records Act, records of state agencies must be made available to the public upon request unless they’re covered by a statutory exemption, such as proprietary information or medical records.
The Freedom Foundation said in the complaint, filed in Thurston County Superior Court, that executive privilege is not a legitimate exemption to the public disclosure. There are more than 300 recognized exemptions in Washington statute, but executive privilege is not one of them.
In bringing suit against the governor, the foundation is seeking an appellate court decision to clarify the state’s position on executive privilege.
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The foundation said the Governor’s Office has cited executive privilege at least 500 times in the past four years as grounds for withholding records. It contends that executive privilege should cover only communication between Gregoire and her closest aides, and it claims she has expanded that to a far broader category of records.
The Public Records Act is written so that its mandate for disclosure 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.”
But the Governor’s Office says executive privilege is inherent in the constitutional guarantee of separation of powers. The Governor’s Office has argued that executive privilege encourages 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,” said Narda Pierce, general counsel for the governor.
Pierce also said that the foundation may not be giving the full story when it says the governor has used executive privilege 500 times in the past 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 statutory 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 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.
To date, there has been only one definitive court case on executive privilege in Washington, when a Snohomish County trial court ruled in favor of the exemption. That case went on to the state Supreme Court, but the judge avoided making a call on executive privilege and resolved the case on other issues. The Freedom Foundation was also the requester in that instance.
“Since it’s happened so often, we feel there’s a higher need for litigation because people are being turned away,” often without knowing that the reason cited is a “nonexistent exemption,” Reitze said.
There are currently 35 documents being withheld by the governor on the basis of executive privilege alone, with 15 more where another exemption is also claimed, Pierce said.