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Wanted: Up-or-down ruling on ‘executive privilege’

Post by Kim Bradford on April 25, 2011 at 5:55 pm |
April 25, 2011 5:55 pm

This editorial will appear in Tuesday’s print edition.

Gov. Chris Gregoire’s office has claimed immunity from the state’s public records law at least 500 times in the past four years.

That may have been six times too many to keep the charade alive.

The Freedom Foundation, a libertarian think tank, is suing Gregoire after her office partially denied the foundation’s request for 11 documents.

Gubernatorial staffers withheld five records and part of a sixth, citing “executive privilege,” a nebulous exception to the state’s sunshine laws that appears nowhere in statute.

State lawyers claim the privilege is inherent in the constitutional separation of powers, and they point to a Snohomish County court ruling from 2006 for support.

Problem is, that was the assessment of one trial judge for one county. No Washington state appellate court has ever squarely tackled the question of executive privilege. The state Supreme Court had a chance a few years back but declined to weigh in.

The Freedom Foundation now hopes to put the state judiciary on the spot. Executive privilege isn’t some side issue in this lawsuit – it is the issue.

Here’s hoping the foundation gets a more definitive ruling than citizen activist Arthur West received last year.

He also sued Gregoire for denying a records request on the basis of executive privilege – and won. But the case did nothing to settle the law.

West won his suit essentially by default, when a Thurston County judge ruled that executive privilege – if it exists – did not apply to the documents West sought.

Judge Paula Casey noted, “It is really curious to me … (that) there has been no case of any kind that really addresses whether there is such an executive privilege. What we do know is that there are many cases from the appellate courts indicating that the Public Records Act exemptions are to be strictly and narrowly construed.”

More than 300 exemptions to the Public Records Act exist in statute, proving state lawmakers are only too willing to limit public disclosure. Yet they have never carved out a special exception for the governor.

The governor says lawmakers don’t have to act – that the privilege to keep some records secret is hers by virtue of her position in the executive branch. But without statute or court cases to guide its use, executive privilege becomes a well-worn excuse which citizens have little recourse to fight.

The Freedom Foundation, which could get a ruling from judges sympathetic to the government’s arguments, is taking a bit of a gamble by pressing the issue.

But it’s a gamble worth taking to, if nothing else, clarify the parameters of a loophole through which so much public information is slipping.

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