OLYMPIA — Gov. Chris Gregoire will have to defend her claims of “executive privilege,” as the Washington Supreme Court has agreed to hear a case over her decisions to withhold certain documents from the public, which critics deride as government secrecy.
Executive privilege is not listed as a specific exemption under state law, but a Thurston County judge ruled last year that Gregoire, a Democrat, was allowed to use it as a reason to keep documents private.
The Olympia-based Freedom Foundation appealed the case directly to the Supreme Court.
“If the governor is allowed to withhold records through executive privilege, it would be the most significant expansion of government secrecy in years,” said Mike Reitz, general counsel for the Freedom Foundation, which brought the lawsuit last year, on Wednesday.
State law encourages the disclosure of public records but already recognizes more than 300 public records exemptions, such as proprietary information or medical files. Gregoire’s office contends that executive privilege is inherent in the constitutional guarantee of separation of powers and that it is necessary so advisers can talk candidly as they work to make decisions.
The Freedom Foundation had sought records on a variety of subjects, including documents on the Alaskan Way Viaduct replacement, medical marijuana and criminal pardons.
No hearing date has been set.
Reitz said he was also concerned that the ruling would shift the burden to the requester to show why a document should not be withheld under executive privilege. He disputed the trial court’s decision to implement a three-part test to determine whether executive privilege is a valid exemption.