Our state’s public records act leans heavily in favor of disclosure, and for good reason. It was enacted by voters in 1972 as an expression of their insistence on open government.
Under that law, records produced or held by government — official documents, memos, emails, databases, audio recordings, etc. — are open to the public unless another law specifically exempts it.
Among those exemptions are certain government deliberations, such as policy recommendations made by subordinates to agency heads before a policy decision is made. The idea behind that exemption, which the state Supreme Court has narrowly accepted, is to avoid harming an agency’s legitimate deliberative or consultive process. But the court has set tight boundaries around it, in keeping with the law’s spirit of openness.
Gov. Chris Gregoire’s administration thinks state law allows a broader exemption for its internal communications. It says the state Constitution inherently contains an “executive privilege” that allows the governor to conceal records at her own discretion.
The Olympia-based Freedom Foundation asked to see records relating to Alaskan Way Viaduct replacement proposals, medical marijuana legislation, and the Columbia River hydro-electric system. The governor’s office denied its requests, asserting executive privilege. The Freedom Foundation sued.
Siding with the governor, Thurston County Superior Court Judge Carol Murphy turned public records law on its head in April, ruling not only that executive privilege exists, but that someone requesting a record the governor claims is privileged carries the burden of proving otherwise.
The Freedom Foundation has appealed to the state Supreme Court. This is an important principle that needs a high-court ruling.
Executive privilege isn’t explicitly mentioned in the Constitution. The open records act, however, is quite clear about its intent:
“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.”
The act, and court rulings that have interpreted it, also make clear its strong pro-disclosure approach. For the governor to assert power to decide what will or won’t be disclosed flies in the face of that long-established principle. At minimum, the burden of showing a government record should be hidden from public view should rest with the government, with a court making the ultimate decision.
The state’s highest court is being asked to defend a principle of openness that the people have long claimed. It’s being asked to do so by rejecting a specious assertion of executive power which undermines that very principle.
It should take this opportunity to underscore Washington’s commitment to open government.