An extraordinarily deferential Washington Supreme Court handed former Gov. Chris Gregoire a victory last week, one that should be as short-lived as possible.
The justices, with only one dissent, established a broad executive privilege that allows a governor considerable discretion in deciding what documents are public, and what he or she can withhold.
Gregoire had denied the libertarian Freedom Foundation access to documents regarding negotiations to replace the Alaska Way Viaduct in Seattle, a biological opinion on Columbia River fish, and medical marijuana. Executive privilege, she said, assured candid communications related to fulfillment of her constitutional duties.
The former governor had previously denied hundreds of requests for other documents, not always with a pass from the courts.
Last year, a state Court of Appeals upheld a $2,175 penalty against Gregoire’s staff for failing to turn over a document that a lower court had determined should be made public.
Executive privilege has been a bane to open government since President Richard Nixon invoked it to hide the illegal activities within the White House. The U.S. Supreme Court, in rejecting that defense, suggested a three-step process for resolving disputes over access, and it was that standard the Washington court would put in place at the state level.
The Nixon ruling requires someone seeking a public record to explain their purpose and show that public interest outweighs the need for confidentiality. A court then examines the documents to determine whether the needs of the record-seekers exceed those of the executive for confidentiality. If unconvinced, the documents are not released.
The court has it backward. The burden of proof should be on the governor, not on those seeking the documents.
As the Public Records Act passed by voters in 1972 says: “The people, in 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 for them to know.”
Unfortunately, the Legislature has punched a lot of loopholes into the law since then, but the principle remains. If the court is confused about where the balance is between executive power and application of the records act, there is a remedy: Have two-thirds of the state House of Representatives and Senate pass, and a majority of voters approve, an amendment to the state constitution explicitly applying the law to the governor.
An effort to do just that could begin next month when Sen. Pam Roach, R-Auburn, says she will place a proposed amendment before the Senate Government Operations Committee, which she chairs.
“I’m going to move this as fast as possible,” she says.
To Gov. Jay Inslee’s credit, he has stood by a campaign pledge not to seek executive privilege. But rather than relying on his good faith, or that of his successors, the people of Washington need to know the records act, not executive privilege, is the law in the governor’s office as it is everywhere else.