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Governor’s Office: privilege claim seldom used to conceal records

Post by Brad Shannon / The Olympian on Sep. 20, 2012 at 2:37 pm |
September 20, 2012 2:37 pm

Arguments ended this morning at the Washington state Supreme Court over Gov. Chris Gregoire’s claim she can shield some government documents from public disclosure using a claim of “executive privilege.” My story previewing the case is here, and a link to a document Gregoire’s staff tried to shield but later had to release is here.

The case was brought by The Freedom Foundation against Gregoire, and open-government lawyer Michele Earl-Hubbard argued this morning on behalf of the foundation. Before the hearing began, the governor’s spokeswoman Karina Shagren sent information to reporters that included data on document disclosures by the second-term Democrat.

Her main points excerpted:

• The Governor’s Office has released more than 90,000 pages through public records request since 2007 – and withheld approximately 250 pages due solely to executive privilege, some of which have since been released. Additionally, the Governor’s office has produced tens of thousands of emails. Overall, the Governor’s Office has withheld approximately two-tenths of 1 percent of documents requested due to executive privilege.

• Many of the documents withheld were later released. o For example, when a requester asked for documents relating to the Sonics lease agreement in 2008 we produced 747 pages and withheld one page. That one page relayed confidential comments to the governor from local officials that could have affected ongoing efforts. That single page was later released in response to a 2010 request when the comments were no longer sensitive.

• Transparency has always been a priority of the governor’s administration – as has thorough research and candid advice. The governor has been uniquely interested in obtaining as much diverse input from as many advisors and participants as possible. Unfortunately – there are not enough hours in the day to hold enough personal conversations, which forces the governor to rely on written briefs. Executive Privilege is necessary, in rare circumstances, to ensure the governor, whoever that person may be, continues to have access to frank and open advice when they are making important decisions.

In arguments this morning, Justice Jim Johnson was quite blunt in telling Deputy Solicitor General Alan Copsey of the Attorney General’s Office that there is “no suggestion” in law of such a privilege. Copsey is defending the governor’s claim, arguing that the right to privilege is grounded in the U.S.v. Nixon case of 1974 when the disclosure of secret White House tape recording was at stake.

But Justice Charles Wiggins appeared sympathetic to the separation of powers argument, while noting the judiciary’s similar concerns.

Separation of powers is meant to shield the executive, judicial and legislative powers of each branch of government from encroachments by the others.

Copsey said seven states have recognized a similar privilege for governors. He called it a limited privilege and said it would not be permanent – in that a new governor could decide to disclose any of the records sealed by Gregoire under a privilege claim.

Both candidates for governor – Democrat Jay Inslee and Republican Rob McKenna – have said they would not exercise privilege.

UPDATE: And McKenna said today he would be inclined to release documents previously concealed under a privilege “as a general matter.” He said he would seek to make documents public  from labor negotiations and reports on the state’s own activities.

One footnote: The briefing document that the Governor’s Office finally released in the recent Arthur West case was written by Kathleen Drew, a former adviser to Gregoire who now is running for secretary of state. Drew has pointed out that she did not participate in the discussion that led to withholding the three-page memo, which she had written to brief the governor about a meeting with the Washington State Association of Counties.

“In fact I was surprised they chose that memo,’’ Drew said.

TVW’s live coverage of the arguments today was here.

We are relying on The Associated Press’ story about the hearing for tomorrow’s papers.

 

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