ON Thursday the Washington Supreme Court is scheduled to hear arguments on whether Gov. Chris Gregoire has an executive privilege to withhold internal documents from the public. No such privilege exists in state statute, and the court should not invent one.
The roots of this case, Freedom Foundation v. Gregoire,go back to the early 1970s. The president then, Richard Nixon, had taped his conversations in the Oval Office. During the fight to remove him from office, he was served a subpoena for some of the tapes, and he claimed an unqualified executive privilege. The U.S. Supreme Court ruled in United States v. Nixonthat the Constitution’s description of his powers implied a “qualified privilege” that did not protect the tapes.
Gregoire now cites Nixon to claim that the governor of Washington has a qualified privilege implied in the state constitution. But a governor is a lesser official; she is not dealing in military, diplomatic or national-security secrets. The “secrets” here were memos from her advisers concerning a medical-marijuana bill in the Legislature, a federal ruling about fish in the Columbia River and a tunnel to replace the Alaskan Way Viaduct.
And in Gregoire’s case there is a law covering her papers. It is the Public Records Act, passed by the voters in 1972 as Initiative 276. It declares that the people of Washington “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,” and that all state and local government records are public except those exempted by statute.
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There are exemptions. One exempts “preliminary drafts, notes, recommendations and intra-agency memorandums in which opinions are expressed or polices formulated or recommended.” That would cover all the documents in this case as long as they were preliminary. But they are no longer preliminary. As the Freedom Foundation argues in its brief, “The tunnel debate is over.”
Judge Carol Murphy of Thurston County Superior Court ruled that Gregoire does have the sort of qualified privilege Nixon had. Murphy declared that if the governor says a document is covered by the privilege, whoever wants that document must show “a particularized need” for it. And Freedom Foundation didn’t say it needed the documents. It wanted them, to prove that anyone could have them.
If Murphy’s decision stands, anyone who wants a document from the governor’s office will likely have to file a lawsuit and prevail over the state. Further, if the governor has qualified executive privilege, the state auditor and the insurance commissioner, and the superintendent of public instruction will want it too.
To affirm Judge Murphy would blow a hole in the Public Records Act.
The Times supports the Act. Allied Daily Newspapers of Washington, a trade association (The Seattle Times is a member), has filed a brief on the side of the Freedom Foundation. We believe our industry’s interest here is the same as the public’s.