OLYMPIA — The question of whether the governor of Washington state can claim an “executive privilege” as a reason to withhold certain documents from the public is now in the hands of the state Supreme Court, which heard opposing arguments Thursday on whether the exemption cited hundreds of times by Gov. Chris Gregoire is allowed by the state Constitution or an attempt at secrecy that violates the state’s voter-approved public records law.
The high court heard nearly an hour of arguments in the case brought by The Freedom Foundation, a libertarian think tank that sued the governor last year.
An attorney for the group argued that executive privilege isn’t a legitimate exemption and that the governor is using it to keep a broad range of documents secret. The Public Records Act is written so that its mandate for disclosure is to be interpreted broadly, and any exemptions are to be interpreted narrowly, ensuring public disclosure whenever possible.
There are more than 300 recognized exemptions in state law, but executive privilege is not one of them. However, a Thurston County judge ruled last year that Gregoire, a Democrat, was allowed to use it as a reason to keep internal documents private. The foundation appealed to the state Supreme Court to reverse that ruling.
“We have never in this state allowed an executive to have a secrecy-forever promise,” said attorney Michele Earl-Hubbard.
The foundation said the governor’s office has cited executive privilege at least 500 times in the past four years as grounds for withholding records. Currently at issue are six documents the foundation is seeking on a variety of subjects, including the Alaskan Way Viaduct replacement, medical marijuana and criminal pardons.
The state told justices 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.
“We’re not asking for a bright line saying that should or should not be disclosed,” Alan Copsey, deputy solicitor general, told the justices. “What we’re saying is that the governor should have the decision space, the elbow room, to consult with close advisers about the important issues that she must decide.”
The state cites the same historical ruling as the Thurston County judge did in her ruling: a 1970s U.S. Supreme Court decision where the court ordered President Richard Nixon to turn over taped conversations to a criminal prosecutor. In that case, however, the justices also formally recognized the doctrine of executive privilege, as part of the balancing of power between the president and Congress.
Copsey and Earl-Hubbard said that seven other states have affirmed executive privilege for their governors based on that U.S. Supreme Court ruling: New Jersey, Alaska, New Mexico, Vermont, Delaware, Maryland and Ohio.
Gregoire’s office sent out an email before the hearing, saying that the office has released more than 90,000 pages of public records since 2007, and that only 250 pages have been withheld through executive privilege, and that some have since been released.
“Executive privilege is necessary, in rare circumstances, to ensure the governor, whoever that person may be, continues to have access to frank and open advice when they are making important decisions,” wrote Gregoire’s spokeswoman, Karina Shagren.
The Washington Supreme court doesn’t have a specific timeline on when it will rule, but its decisions often come six to nine months after a hearing.
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