Lawsuits Challenge Governor’s Right to Withhold Documents – Privilege Not Granted by Law is Cited by Gregoire Nearly 500 Times Since 2007

Former President Richard Nixon and Washington Gov. Christine Gregoire.

By Erik Smith

Staff writer/ Washington State Wire

OLYMPIA, June 22.—Two judges in two different courtrooms Friday decided Gov. Christine Gregoire has the right to keep some things to herself, and it appears the state’s high court will be asked to decide whether she can make the same claim Nixon once did – that there’s such a thing as “executive privilege.”

            Gregoire’s office has used the claim nearly 500 times since 2007 to withhold documents sought under the state’s public records law. The law doesn’t give her the right to do it. But Gregoire’s office maintains it can do it anyway. Like Nixon at the height of Watergate and governors since then in other states, Gregoire maintains that a state’s chief executive has constitutional rights no law can touch.

            The issue poses one of the biggest challenges for the state public records law since it was passed by a voter initiative in 1972. The law gives the public the right to inspect the records of public agencies and political bodies. It is used by the press, commercial and political interests and the public at large to shed light on the actions of government. The fact that a public records request can always be filed is one of the things that helps keep government in the Evergreen State on the straight and narrow.

            Gregoire might not be in the kind of trouble that prompted Nixon to take his case to the U.S. Supreme Court. But she is making the same argument, and her brief relies on the decision made in that case. She says there’s an unwritten rule inherent in the constitution that trumps ordinary lawmaking and allows a state’s chief executive to shield some things from public view. The decision in the Nixon case has been cited numerous times by other governors seeking to keep things private, but it is the first time the issue has approached the high-court level in Washington.

“There is a public interest in allowing the governor to determine when disclosure of a particular document would inhibit candid and robust exchanges with her staff and hinder her ability to do her constitutional job as governor,” said spokesman Scott Whiteaker.

            Matters of Public Interest

            The issues involved are big ones. That much is demonstrated by the records sought by the Freedom Foundation, a libertarian think tank that filed one of the suits. They cover a half-dozen topics that have made headlines in recent months, including medical marijuana, the replacement of the Alaskan Way Viaduct in Seattle and salmon-recovery efforts involving the dam system on the Columbia River.

            After Gregoire's office balked, the Freedom Foundation filed a suit in April based seeking those specific records. Meanwhile, citizen activist Arthur West of Olympia filed a separate lawsuit challenging the governor’s ability to claim executive privilege. Simultaneously in two different courtrooms in Thurston County Superior Court Friday, judges Carol Murphy and Gary Tabor decided the same issue the same way. They said Gregoire can do it. West has filed an appeal directly to the Supreme Court.

            The Freedom Foundation is taking a more conservative approach – it will ask the Thurston County court to determine whether executive privilege applies to the documents it is seeking. If the answer is yes, it will appeal, thus establishing a decision that carries weight statewide. And if the Freedom Foundation doesn’t win in appeals court, ultimately it will ask the state’s high court to rule.

West also has appealed to the Supreme Court on a somewhat different public-records case he filed last year. In that case, a Thurston County judge ordered the governor’s office to produce records that had been denied on executive-privilege grounds, but set a low $25 fine for a violation.

One way or another, the courts will settle the question, says Mike Reitz, attorney for the Freedom Foundation. And it’s a big one.

No court ruling has set the standard for Washington. Various county courts have issued rulings all over the map, he said, but no appeals courts have established a precedent that holds statewide. “That’s why you can have the governor asserting executive privilege – there is no appellate guidance, and until an appellate court says otherwise, I suppose they will continue to do so,” he said.

Following Nixon’s Rules

If the argument has a familiar ring, it’s because “executive privilege” was a hot topic back in the Watergate years. The Nixon Administration argued that it shouldn’t have to produce witnesses and documents demanded by the courts and Congress. The U.S. Supreme Court agreed, to an extent. Its 1974 decision didn’t keep Nixon out of hot water, but it said that where ordinary policymaking is involved, the executive branch of government ought to be able to operate without fear of harassment from the other two. So documents addressed to and from the president were exempt.

The governor’s office says the same principle applies to state government – an argument that has been upheld in Alaska, Delaware, Maryland, New Jersey, Ohio and Vermont. “Each branch must have some internal space to ponder its business free from the intermeddling of other branches,” says the governor’s brief. “Legislators must be free to talk candidly and confidentially among themselves and with staff in caucuses and offices. Judges must be free to conference with each other and with their clerks and staff. The same principle holds true for the governor as she communicates with her advisors and staff.”

The central concept hinges on the separation of powers, a concept embodied in the federal constitution as well as those adopted by the states. Laws are a function of the legislative branch, the governor’s office argues, and it doesn’t matter whether they are passed by the Legislature or by the people in the form of an initiative. It says the governor’s constitutional rights trump any law.

Gregoire’s office argues that it ought to follow the rules the U.S. Supreme Court laid down for Nixon. It ought to be able to explain why a specific document is exempt from disclosure. The decision can be challenged in court. But the only reasons to overturn its decision involve criminal misconduct, certain matters of civil litigation and compelling matters of public interest.

            Can’t Just Make it Up

By forcing the issue in court, West and the Freedom Foundation are risking a ruling that the governor has the ability to invent an exemption to the public records law. But it’s not as if they have much to lose – the governor’s office is asserting the power already.

Previous governors have cited the same principle in denying records requests, but the Gregoire Administration has resorted to it so often that Reitz says it’s about time the courts weigh in. There are 300 limited exemptions to the state's public records law – police officers’ addresses can't be disclosed, for example – but it grants no special rights to the governor. And such an enormous loophole isn’t something the governor’s office ought to be able to make up by itself, he says. 

“The public records act, and more significantly the state constitution, say power belongs to the governor and other branches of government because it has been delegated to them by the people,” Reitz said. “The people are the ultimate sovereigns and demand accountability, and one of the ways you get accountability from public officials is access to information about their decision-making process.

“The public records act specifically is very clear that the default is toward disclosure. If a member of the public wants a document from the public agency, they should be able to get it unless there is a very good reason to keep it confidential, and those reasons, as the public records act request says, have to be stated in the law, the records act or in some other statute. But they can't just be a reason made up by a public agency. It has to have a basis in law.

 “Our concern in this particular situation with the claim of executive privilege is that in 120 years of statehood we have no cases that have said the governor has an executive privilege that would allow that office to withhold information or records from the public. Our contention is that the governor, if she is going to withhold records, should do so on the basis of some identified recognizable exemption in law, and not a constitutional theory that hasn’t been recognized in this state.”

            Making Decisions in Secret

West, in a sense, piggy-backed on the Freedom Foundation’s efforts. When Reitz wrote a paper in 2009 about the Gregoire Administration’s frequent use of executive privilege, West filed a request for all the records that had been withheld. That was the basis for his own lawsuit. He scheduled his hearing Friday to coincide with the Freedom Foundation case, figuring that one or the other might have a better shot if there was no precedent to guide the decision. But no luck. The two judges ruled the same way.

The governor’s office is using executive privilege to avoid public scrutiny, West says. 

“If you look at the records that they have claimed executive privilege for, they range across the spectrum from 60-day supply of marijuana to transportation – the 520 bridge, that [State Data Center] building that was built, everything government does – and they are using it routinely to obstruct oversight of virtually all the briefings that her advisers give her, a large segment of it on a wide range of important issues.

“If the privilege is allowed in the manner that Judge Tabor has described, it is a virtually unlimited privilege that government can assert, and there is effectively no way for a citizen to challenge it or get an in-camera review. You have to show a need for the records and basically it stands the public records act on its head. Rather than the agency having to show a reason for the exemption, the requester would have to show a reason for the record.