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Editorial: Executive privilege should come with limits
Washington has had a public records law for three decades. So, an Olympia judge said in February, it’s curious that no court case “really addresses” if there’s any such thing as executive privilege, the doctrine Gov. Chris Gregoire has cited to deny hundreds of requests for documents.
Thurston County Superior Court Judge Paula Casey declined a perfect opportunity to propose the missing answer. She ordered that the governor had to turn over a memo sought by citizen activist Arthur West, but only because it would not have been protected by executive privilege. If it exists. And she’s not sure it does. Although it makes sense.
On Monday, the Freedom Foundation, a libertarian-oriented think tank, filed its own case against Gregoire, asking the courts to make her comply with the disclosure law the same as any other public agency.
Washington’s open-government law was created in the 1970s as an initiative, but it has become encumbered over the years with 300 or more exemptions that dwarf the original handful. Executive privilege is not on the list.
Not that Gregoire or any other governor is apt to embrace that option. Although executive privilege is not mentioned in the state or U.S. constitutions, it has been divined there as an outgrowth of the separation of powers. That trumps a mere statute.
It’s also been around since 1796 when George Washington refused to give the House of Representatives documents related to negotiation of the Jay Treaty.
The concept is too firmly rooted for the Freedom Foundation’s legal challenge to eliminate it. But a desperately needed restriction may be in reach.
Washington isn’t the only state where governors are in conflict with open records laws. New Mexico Gov. Susana Martinez this year issued an executive order narrowing, but not eliminating, the circumstances under which executive privilege could be invoked.
An executive privilege showdown over New Jersey Gov. Frank Corzine’s emails with a former girlfriend prompted Ingrid Reed, then with the Eagleton Institute of Politics, to say the situation was “crying out for reclarification, redefinition of what you mean by executive privilege.”
Is it ever. Correspondence from Gregoire’s office stresses that executive privilege is something she can invoke or waive as she sees fit. According to the Freedom Foundation she has even substituted executive privilege as her authority for withholding records after another was challenged by the requestor.
It’s probably not practical to deny a governor a limited measure of confidentiality in her intraoffice dealings, but the circumstances need to be narrowly defined and each use meticulously justified.
The frequency and flexibility with which Gregoire has exercised this doctrine are cause for concern. In questions involving public records, the default setting should be to release them – as in “public.”