The determined citizen activists who wrote Washington’s Public Disclosure Act in the 1970s were clear-headed enough to concede a few circumstances in which government business can properly be done outside the public’s view.
But just a few.
It would compromise the public’s interest, for example, if the state had to disclose its strategy in pending litigation, real estate transactions or collective bargaining activities. Such situations were enumerated in the law.
Over the decades, the Legislature has liberally stretched the boundaries well beyond what the drafters considered government activities that might escape public observation. But as courts have said consistently, those exemptions must be strictly and narrowly construed – another way of saying that the protected activity has to be clearly the sort of thing the exemption was intended to cover. No creative interpretations allowed.
So how does Gov. Chris Gregoire’s office justify repeated claims of executive privilege as grounds for withholding documents?
The statutes recognize no such exemption, as the Evergreen Freedom Foundation, a conservative, Olympia-based think tank, keeps reminding the governor. The governor’s office is unmoved, continuing to turn down requests for internal memos generated by the governor’s advisers.
In the three-year period 2007-’09, Gregoire’s office denied more than 400 records requests on grounds of executive privilege. At least one dissatisfied requester took her to court and ultimately obtained the document he was seeking, but in a disappointingly equivocal ruling from a Thurston County judge who admitted she doesn’t know whether executive privilege is a valid claim.
Judge Paula Casey commented in her oral ruling earlier this year that extending a qualified privilege to advisers’ written advice to the governor “makes some sense to me” – but it’s not in the law.
The memo being sought in the case before her contained no advice, just a recitation of the positions taken by “various entities” and a listing of proposals before the Legislature. That, said the judge, would not qualify for the privilege, even if it exists, so the plaintiff should get his document.
In his criticisms of the governor, Evergreen Freedom Foundation general counsel Michael Reitz has noted that both the legislative and judicial branches of government enjoy certain exemptions from the public records law, but in those cases, unlike the governor’s, it’s spelled out in statute.
Reitz recommends that if the privilege is going to be asserted and recognized it needs to be codified – which might not be all that difficult, given how generously the Legislature has responded to other requests for open-government exemptions.
If it comes to that, at least lawmakers would be able to prescribe limited circumstances in which such an exemption would apply. The case that wound up in Judge Casey’s court revealed how far a government agency will go to draw a blanket of confidentiality over a seemingly innocuous document.