The state Court of Appeals has upheld a $2,175 fine against Gov. Chris Gregoire’s staff for illegally withholding a three-page briefing document that Olympia activist Arthur West requested in 2009.
Gregoire initially claimed the record was protected by “executive privilege” – a controversial legal position that is now under legal challenge by open-government advocates in a separate case being heard Thursday in the state Supreme Court.
In West’s case, a Thurston County judge had determined that the withheld memo to Gregoire would not have qualified for protection under a privilege claim. The unanimous appeals court ruling authored by Judge Joel Penoyar this week upheld a $25 per day fine against the governor’s office.
With costs and interest added, West was paid $2,652.96.
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Much more is at stake in next week’s case brought by the Freedom Foundation based in Olympia. The libertarian-oriented think tank contends there is no implied right of privilege that could trump the disclosure demands of the Public Records Act, and its lawyers suggest Gregoire is inventing a privilege.
“This new privilege significantly expands the governor’s ability to keep secrets from the public,” said Michael Reitz, former general counsel of the Freedom Foundation who worked with open-government lawyer Michele Earl-Hubbard on the case, which deals with a half-dozen records that were withheld or heavily edited before their release.
“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,” Reitz added.
Court documents say other Washington governors – including Democrat Gary Locke – have asserted the privilege, and several other states recognize the right.
Lawyers for Attorney General Rob McKenna’s office argue in court briefings that the governor has a limited but implied right of privilege – similar to what the U.S. Supreme Court clarified nearly 40 years ago in a Watergate-era case pitting former President Richard Nixon against Congress.
The legal basis of that privilege is the constitutional separation of powers that protect the legislative, judicial and executive branches from encroachments by the others.
Alan Copsey, a deputy solicitor general for the attorney general, wrote in one briefing that executive privilege serves a public interest by ensuring a governor can carry out constitutional duties “by ensuring open and frank discussions and deliberations in executive decision making and policymaking.”
Groups as varied as newspapers, the American Civil Liberties Union and the Institute of Justice disagree with the governor and have filed friend-of-court briefs in the case. They warn that the privilege claim harms the public’s right to know what its government is doing.
In the dispute at hand, Reitz said the foundation sought 11 documents. The state disclosed five, heavily redacted ones and blocked access to the remaining five. The documents dealt with, among other issues, the Alaskan Way Viaduct tunnel and an opinion about dams along the Columbia River.
Reitz said he once did a tally of records sought by the foundation that had been denied on a basis of the governor’s privilege claim, and they numbered in the hundreds. They included documentation around gambling compacts with tribes, judicial appointments and rules for marijuana.
Nancy Talner, staff attorney for ACLU-Washington, said that unlike the federal privilege based on the special functions of the president under the federal constitution, the governor’s powers “must be evaluated under state law, and our state’s longstanding commitment to open public records.”
The Freedom Foundation lost its argument in trial court in July 2011. Thurston County Superior Court Judge Carol Murphy found the privilege claim is grounded in the state constitution’s separation of powers and as an “other statute” exemption in the Public Records Act.
In the West case, Thurston County Judge Paula Casey did not need to apply the test or even examine the legality of Gregoire’s privilege claim. That is because the three-page document in dispute was clearly not eligible for that protection, Casey ruled.
The record in dispute was a memo from policy aide Kathleen Drew (now a secretary of state candidate) to Gregoire that prepared her for a meeting with the Washington State Association of Counties in 2009. It included recommendations from staffers on policies of interest to the counties.