A damnable convenience

We are offended.

The people of this state clearly want governmental business to be conducted openly. But the state’s top court is conjuring up an “executive privilege” that allows the governor to ignore the public records law.

Three years ago, the non-profit Freedom Foundation requested documents from Gov. Chris Gregoire. When she refused to provide all of them, the foundation dashed to court. This month, the Supreme Court decided the state’s Public Records Act cannot compel governors to release many of their internal communications.

The public records law contains a host of exemptions cited by agencies when withholding information deemed sensitive or damaging. But the court doesn’t say the governor is entitled to these exemptions – it says the governor sits beyond the reach of the Public Records Act itself.

What do state laws say about citizens and their government? The state constitution asserts: “All political power is inherent in the people, and governments derive their just powers from the consent of the governed.”

Additionally, the Public Records Act, passed in 1972 as a citizens’ initiative, states: “The people of this state do not yield their sovereignty to the agencies that serve them. 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.”

What explicit legal basis does the Supreme Court find for our governor’s executive privilege? It finds none.

Instead, the court observes that our state government has a separation of powers (legislative, judicial and executive). And the court concludes this means citizens intend to shield the governor from intrusions by other branches – like legislative statutes, even those enacted directly by the citizens.

The court cites scant Washington case law to support its reasoning. Instead, it is repeatedly forced to rely on a federal case dating from the Watergate era, when Nixon was fighting to protect his destructive secrets.

This is not the first blot on the court’s record regarding open government. Early this year, it eroded a long-standing presumption of openness in legal proceedings when it lowered the standard for participants to seal evidence submitted in court cases.

Chief Justice Barbara Madsen and her colleagues must recognize the long-term damage they inflict when they provide legal leverage for future politicians or bureaucrats who are hellbent on choking off public access.

When sorting through complex disputes, it may seem convenient to sacrifice a bit of openness here or a degree of access there. But it is a damnable convenience.

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