OLYMPIA — Washington’s governor can claim “executive privilege” as a reason to withhold records from the public even though it is not listed as a specific exemption under state law, a judge ruled Friday.
Thurston County Superior Court Judge Carol Murphy said in her decision that she wants to hold another hearing to determine whether Gov. Chris Gregoire properly asserted the claim in blocking the release of documents to a Libertarian think tank. The governor’s office has proposed rules on how to make that determination.
The Freedom Foundation sued Gregoire in April, arguing that executive privilege isn’t a legitimate exemption and that the governor is using it to keep a broad range of documents secret. Mike Reitz, an attorney for the Freedom Foundation, said he was disappointed by Friday’s decision and warned that executive privilege would make it easier for state leaders to withhold documents even though state law encourages disclosure.
“At that point, the governor has a broad exemption at her disposal as opposed to a narrow one,” he said.
The issue has never been settled by an appeals court. Reitz said he expects that an appellate court will take up the issue eventually but that no decision on whether to appeal has been made.
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.
State law recognizes more than 300 public records exemptions, such as proprietary information or medical records.
The records at stake in the lawsuit concern a variety of subjects, including documents on the Alaskan Way Viaduct replacement options and medical marijuana legislation. The lawsuit seeks the release of all requested records in unredacted form, as well as monetary penalties for the public records violation.
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