Washington Supreme Court to rule on executive privilege

OLYMPIA – Gov. Chris Gregoire believes she can keep some documents from the public because of executive privilege. The Freedom Foundation believes she can’t because no such exemption exists in state law.

This week the state Supreme Court accepted a case that will decide who’s right.

The foundation, a think tank and government watchdog group in Olympia, has been refused documents sought under the state’s public records law on a wide range of gubernatorial decisions, from tribal gaming pacts and pardons to judicial appointments and medical marijuana regulations.

More than a year ago, the foundation filed a lawsuit in Thurston County Superior Court, arguing that the law has about 300 exemptions that can keep documents secret but that executive privilege isn’t one of them.

Judge Carol Murphy eventually agreed with Gregoire that executive privilege is inherent in the state constitution. If the governor asserts executive privilege, the person or group requesting the documents has the burden of showing that the need for the document outweighs the governor’s interest.

The foundation appealed Murphy’s ruling directly to the Supreme Court, and this week the court agreed to put it on its fall calendar.

Mike Reitz, an attorney for the foundation, said that shows that the court recognizes the importance of the issue. “This is the first time the court will directly address the question of whether the governor of Washington can conceal records by claiming executive privilege,” he said.

Janelle Guthrie, a spokeswoman for the state attorney general’s office, which will handle the other side of the case, agreed it’s an important test of the separation of powers: “The governor has willingly submitted this case to the courts for resolution, and we’re ready for the state Supreme Court to decide it.”