The Olympia-based Freedom Foundation is forcing an issue that needs to be forced: whether a governor can conceal documents by invoking an unwritten executive privilege that overrides the state’s Public Records Act.
The Freedom Foundation, a conservative think tank, is suing Gov. Chris Gregoire to get six records of her office’s internal discussions about medical marijuana, the Alaskan Way Viaduct and salmon recovery efforts in the Columbia River Basin. The state Supreme Court heard the arguments last week.
Her attorneys say a governor needs “elbow room” to discuss sensitive questions with her staff with an assurance of privacy.
That’s a respectable argument – one that should be made to the Legislature. But Gregoire claims the Washington Constitution gives her power to withhold such internal documents – despite the constitution’s failure to mention this privilege.
Her argument largely relies on the U.S. Supreme Court’s recognition that the nation’s president possesses a “qualified privilege” to withhold certain records. We think the analogy between the governor and president is specious.
In Washington, executive authority is splintered into nine different offices; we elect an independent secretary of state and treasurer, for example. Our governorship is a pale shadow of the presidency. And unlike the president, the governor guards no state secrets.
The lack of an explicit executive privilege in the Washington Constitution is not a mere oversight. The constitution explicitly recognizes a corresponding privilege for legislators. The authors were aware of the issue and presumably knew what they were doing when they didn’t extend the same power to the governor.
Gregoire’s team won the first round of this battle last summer in Thurston County Superior Court. Judge Carol Murphy’s ruling shows what the stakes are for the public.
The Public Records Act requires public agencies to release documents to any citizen for any reason upon request. Executive privilege empowers the governor’s office to demand why the citizen wants the record – and then decide whether the reason is worthy enough.
The act gives the government the burden of specifying why a document is exempt from disclosure. Executive privilege flips the burden, requiring the citizen to demonstrate – to a court – why a record ought to be released.
The governor’s arguments torture both the constitution and Washington’s long tradition of government transparency. We hope the state Supreme Court agrees.