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The phantom loophole in state records law

Post by Kim Bradford on Aug. 17, 2009 at 8:02 pm with 4 Comments »
August 17, 2009 8:02 pm

This editorial will appear in Tuesday’s print edition.

Washington’s open records law is far from absolute. Over the years, lawmakers have granted more than 300 exceptions to its broad mandate for public disclosure.

But the common theme among most of those exemptions is that they reside explicitly in state law. Government agencies and citizens may not always agree on whether an exemption should apply, but at least they are both reading from the same page.

Not so with the nebulous "privilege" invoked by the Legislature and governor. In at least three publicized instances this year – and perhaps more lesser-known ones – the legislative and executive branches have claimed an immunity that appears nowhere in statute.

The latest case was in response to a request made by the Evergreen Freedom Foundation for records pertaining to Gov. Chris Gregoire’s executive order on climate change. The governor’s office initially withheld some documents based on "executive privilege."

The basis for the denial: a 2006 Snohomish County Superior Court decision that created an executive privilege for written communications between the governor and members of the governor’s staff.

That’s the same case that the Department of Revenue cited earlier this year for delaying the release of records about tax increase proposals it had analyzed at the request of state lawmaker s. The agency stalled to give lawmakers time to decide whether they would invoke "legislative privilege."

Lawmakers eventually turned over the documents. So did Gregoire earlier this month after the EFF challenged her office’s use of executive privilege. But both the Legislature and the governor said that they reserve the right to assert their special exception to state records laws in the future.

Here’s the problem: The privilege they assert is largely untested in this state. The Snohomish County judge ruled that the constitutional separation of powers prevented the judiciary from demanding access to the deliberative process of policy makers. But when the state Supreme Court had the opportunity to weigh in on the matter, it declined.

Who knows what the state’s highest court will decide when squarely asked if legislative or executive privilege exists – if the question ever goes before the court. Lawmakers and the governor certainly don’t appear eager to press the issue.

In the meantime, "privilege" looks a whole lot like the rabbit that gets pulled out of lawyers’ and records keepers’ hats when they’d rather not disclose something.

The governor and Legislature, if truly convinced that constitutional principles give them greater leeway to disregard the state’s public records laws, would write the exemptions in statute for everyone to see. But that would invite a public debate that elected officials know they would lose.

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Leave a comment Comments → 4
  1. jimkingjr says:

    Oh, c’mon. I do not remember a specific statutory provision that existed when journalists first started claiming privilege for communications with sources.

    There are many provisions of law that are not statutory. Some derive from constitutional provisions as defined by case law. No politician in their right mind is going to boil down their broad protections into narrow statutory definitions.

    Besides, none of the media are actually keeping enough reporters on the payroll to cover the issues that are right out in the open. Why bother opening up more, when you can’t adequately cover what is already there?

  2. dltooley3 says:

    Mr. King must be a lawyer, arguing for removal of the rights of individual citizens to access their government on the basis of, uh, ‘technicality’, at best.

  3. dltooley3 says:

    I’ve been wondering if Judicial exemptions are based on the same argument here. McKenna himself cites that exemption is his guide to public records law, but provides no cite. I’ve talked to a couple of people familiar with the general subject and as of yet have found no authorative reply.

  4. Kim Bradford says:

    jimkingjr: Sure, there wasn’t a state shield law when journalists first started claiming privilege, but there is one now – and we journalists argued for its creation. The argument that the availability of public records should depend on the availability of reporters to request and interpret them assumes the media are the primary users of public records laws. We are not.

    dltooley3: I’m not sure what you mean by judicial exemption. Are you talking about access to court files or records about judges themselves?

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