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Gov. Inslee is keeping campaign promise to not claim executive privilege on records requests

Post by Brad Shannon / The Olympian on April 4, 2013 at 11:58 am with No Comments »
April 8, 2013 5:55 pm
Gov. Jay Inslee
Gov. Jay Inslee

So far, so good: Gov. Jay Inslee is living up to a campaign promise not to claim “executive privilege” to shield government records from disclosure.

The Freedom Foundation, which sued former governor Chris Gregoire over her use of the claimed privilege to deny some 500 records requests, says it put in requests for a half-dozen sets of documents from Inslee which Gregoire had denied on grounds of executive privilege. The new Democratic governor’s staff provided all of them. Plus ,a foundation spokeswoman said, no new privilege claims have been asserted since Inslee took office in mid-January.

In a news release, the foundation, a right-of-center think tank based in Olympia, said Inslee is living up to the promise he made to The Olympian last spring in an interview.

The Foundation said Inslee provided six different sets of documents Gregoire had previously refused to divulge while claiming privilege – an argument that the function of government would be compromised if information were released. But it appeared there was nothing in the papers eventually disclosed to Freedom Foundation that were controversial. They included meeting memos for the governor concerning the Braam foster-child legal settlement, unemployment insurance, Puget Sound clean-up, and options for liquor-store expansions.

“After a review of the content, it seems as though Gregoire’s decision to withhold the documents was more an exercise in self-importance than an effort to hide anything in particular,” Jonathan Bechtle, chief executive for the Freedom Foundation, said in an email.

“I am pleased to see Governor Inslee keep his word and not invoke a privilege that does not exist,” Bechtle added in a news release. “Due to the support from people and media all over the state … it’s clear we are showing the way forward toward a more transparent government.”

During their campaign for governor, both Republican candidate Rob McKenna and Inslee said they would not invoke a privilege claim. As we reported in  our June story:

“From what I know right now, I would not intend to exercise executive privilege unless or until it was delineated by the Legislature or a vote of the people,’’ Inslee said in a recent interview, adding that he did not know all the details of the legal case. “What we’re talking about is the public trust in the system, and that should be jealously guarded. … Close calls go in my book to public disclosure.’’

McKenna and his agency are defending Gregoire’s claim to privilege at the Supreme Court, but the attorney general said flatly that he would not claim privilege to shield the release of records as governor.

Instead, McKenna said he would rely on existing records law and any exemptions written into it. He declined to elaborate and said he could not talk about the Freedom Foundation case itself.

But McKenna did pledge that, if elected, he would go further than his predecessor. “I’ll be appointing people to agencies, and I’ll require greater transparency and compliance’’ as a condition of appointment to jobs, McKenna said. “The governor sets the tone for the entire state, all state agencies, when it comes to transparency. I think I’ve set a positive tone and a high bar for state agencies.’’

Open government advocates are still waiting for the state Supreme Court to rule on the foundation’s lawsuit challenging the Gregoire administration over using privilege to block the release of records on everything from the Alaskan Way Viaduct replacement to tribal gambling compacts, judicial appointments, even rules for marijuana.

A judge in Thurston County Superior Court ruled in favor of Gregoire, rejecting the foundation’s lawsuit filed in 2011. But the case was appealed and the case was argued before the Supreme Court last fall.

The foundation has argued there is no provision for a privilege claim in the state Constitution and that the governor is subject to the Public Records Act. But in arguments before the high court, Deputy Solicitor General Alan Copsey argued the privilege was grounded in the U.S.v. Nixon case of 1974 when the disclosure of secret White House tape recording was at stake.
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.

And indeed that is what Inslee has done.

The foundation’s argument was backed in friend-of-court briefs from such disparate groups as the National Freedom of Information Coalition, the American Civil Liberties Union, Institute for Justice, and Washington Coalition for Open Government.

In another case, the state Court of Appeals last year upheld a $2,175 fine against Gregoire’s office after her staffers illegally withheld a three-page briefing document and other papers that Olympia activist Arthur West asked for in 2009.

Gregoire initially claimed the record was protected by her “executive privilege.” The briefing was described as a “governor’s meeting memorandum” drafted in preparation for a meeting with leaders of the Washington State Association of Counties.

The memo was written by Kathleen Drew, then a policy adviser to Gregoire on government reform. But Drew said during her campaign for secretary of state last year that she did not participate in discussions about withholding the memo, and she expressed surprise over it being withheld.

The memo was part of hundreds of pages of documents sought by West, who has a separate legal challenge to the privilege claim waiting for the foundation’s lawsuit to be resolved.

Previous posts on the privilege issue are here , here and here.

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