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Tag: executive privilege


A privilege mysteriously absent from the state constitution

This editorial will appear in Sunday’s print edition.

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.
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