Gov. Christine Gregoire's defense is based on a Watergate-era decision by the U.S. Supreme Court that dealt with executive privilege claims by President Richard Nixon.
UPDATE, April 25.–The state Supreme Court announced Tuesday afternoon that it will hear arguments in the Freedom Foundation’s challenge to the Gregoire Administration’s use of “executive privilege” in denying public records act requests. The hearing has not yet been scheduled.
OLYMPIA, April 23.—An executive-privilege claim by Gov. Christine Gregoire that recalls one made by a certain not-so-fondly remembered president may soon be tested before Washington state’s Supreme Court.
The court is due to announce Tuesday whether it will hear a challenge to the Gregoire Administration’s use of “executive privilege” to deny public-records act requests. Though no such exemption exists in state law, the governor’s office is relying on a Watergate-era decision by the U.S. Supreme Court. That 1974 ruling held that in cases of ordinary policymaking, the federal executive branch could withhold documents, but not where allegations of criminal misconduct were concerned. It didn’t help Richard Nixon much, of course.
It has been a year since Washington State Wire last wrote about the case, and it is worth recounting a few details. Under Gregoire, the governor’s office has frequently used claims of “executive privilege” to avoid releasing documents that have been requested by the public. Blocked by the governor’s office in one of its requests, the Freedom Foundation, a free-market think tank, filed a request for a listing of all documents withheld on executive privilege grounds. The answer? The governor’s office cited executive privilege in an astounding 492 cases from 2007 to 2010, on everything from medical-marijuana regulation to tribal gaming compacts and the scramble to keep the Sonics in Seattle.
The practice is really the biggest challenge that the state’s Public Records Act has faced in recent years, maintains the Freedom Foundation, which filed the suit. It shouldn’t be seen as a liberal or conservative issue, says attorney Michael Reitz. “This is really about access to records that anyone would enjoy,” he says. “You know, if you are a Sonics fan or a pot advocate, all want to have access to records in the governor’s office, and they equally believe that accountability is important. So I think this cuts both ways, and just because one party is controlling the governor’s office right now, it would be a concern down the road if another party were in control of the office.”
The Freedom Foundation appealed directly to the state Supreme Court after its arguments were rejected last year in Thurston County Superior Court.
The Gregoire Administration has maintained that some records ought to be shielded from public inspection, simply for the smooth functioning of government. The hitch is that while the state Public Records Act allows some 300 exemptions from disclosure requirements, the agency denying the request is required to justify its action and cite the specific exemption that is being used. The law also doesn’t grant special privileges to the governor’s office. Last year, when queried by Washington State Wire, Gregoire spokesman Scott Whiteaker said, “There is a public interest in allowing the governor to determine when disclosure of a particular document would inhibit candid and robust exchanges with her staff and hinder her ability to do her constitutional job as governor.”
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