It looks as if Washingtonians will finally get resolution to the debate over whether the governor can invoke “executive privilege” to shield public records from public view. The state Supreme Court has agreed to hear a direct challenge to that claim by accepting the case brought by the Evergreen Freedom Foundation, a libertarian government watchdog.
Executive privilege is not mentioned in the state constitution; nor is it among some 300 exemptions that the Legislature has granted since voters adopted the Public Records Act in 1972. Nonetheless, a Thurston County judge last year supported Gov. Chris Gregoire’s executive privilege claim in refusing to release some records requested by the foundation.
What’s more, the rationale invoked in Judge Carol Murphy’s ruling appears to strengthen the position of any governor hoping to keep the public’s business private.
Murphy ruled that executive privilege is inherent in the Washington Constitution, and there may be some merit to that position. The concept isn’t mentioned in the U.S. Constitution either, but executive privilege has been invoked as far back as 1796. The U.S. Supreme Court has upheld the privilege, but it is not without limitations.
What’s worrisome about Murphy’s ruling is it states that the governor validates the privilege merely by invoking it. Then it is up to the records requestors to explain why they need them. That’s an uphill battle for any citizen, and a 180-degree turn from the Public Records Act, which puts the burden of proof on the government, stating: “The people of this state do not yield their sovereignty to the agencies that serve them. The people, delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good.”
Again, there is no exemption from the law for the governor’s office. Furthermore, no appellate court has ever considered the executive privilege claim and how extensive it might be, so it’s good news that the state Supreme Court has accepted this lawsuit.
Certainly, the governor’s office needs some level of confidentiality, but Gregoire has invoked the privilege 500 times since 2007, according to the Evergreen Freedom Foundation. Evergreen originally requested records related to the Alaskan Way viaduct, medical marijuana, efforts to retain the Seattle SuperSonics and several other public matters. The governor’s office has shielded some of that information, saying secrecy ensures more candid conversations behind closed doors.
At the very least, the justices should place the burden of proof on the governor to explain why records shouldn’t be released. And in devising limitations to the privilege, they should draw on the intent of the 1972 initiative, which states that it “shall be liberally construed and its exemptions narrowly construed to promote the public good.”