State Supreme Court grants prior Governor's office request for shroud of secrecy
Channeling former President Nixon, the state Supreme Court today showed Washington State isn't that different from Washington D.C. after all by granting the Governor's office the claim of executive privilege to deny citizens access to public records.
The decision stems from a Freedom Foundation lawsuit against former Governor Gregoire that argued her claim of executive privilege over nearly 500 records was a violation of the state's landmark public records law since there was no exemption from public disclosure in the law for the broad claim of executive privilege. The Freedom Foundation argued that the Governor should claim one of the current hundreds of exemptions from disclosure actually provided for in law or release the records.
Instead the Governor's Office argued that there is a separate constitutional right of secrecy for the Governor based on former President Richard Nixon's successful claim that has resulted in a shroud of secrecy for the President. Today the state Supreme Court agreed that the Governor is also entitled to this same right of secrecy to deny citizens access to public records that don't already fall within one of the hundred exemptions from disclosure currently in law.
According to the majority opinion:
The people delegated supreme executive power to the governor when they ratified the constitution. The gubernatorial communications privilege, delegated along with supreme executive power and vested in the governorship, cabins the right to demand information through open government laws. The PRA cannot override this constitutional delegation of power; any such attempt must come through constitutional amendment. Like the trial court below, we conclude that the governor may invoke the gubernatorial communications privilege in response to a PRA request.
Since the Court has spoken, now it is time for the people to take them up on their suggestion for a constitutional amendment to ensure the people's right to know includes knowing about the records of the Governor.
As we've recommended in our Policy Guide for Washington State:
The Public Records Act was passed to keep the people of Washington informed about the decisions state officials make in their name. The intent section of the Public Records Act is clear:
'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. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.'
Still, over time a long list of exemptions has been enacted, increasing secrecy in government and weakening citizens’ ability to see important public information. The intent of the Public Records Act should be added to the state constitution and a higher vote threshold adopted for enacting new exemptions.
Along with adding the preamble of the state's public records law to the constitution the amendment should make clear that no elected officials or public entity is exempt from the people's right to know.
Though it is hard to see a silver lining from today's Court decision, should Governor Inslee continue to keep his promise, at least during his administration no citizen should ever hear the words: "Public records request denied due to executive privilege."
As noted by the Tacoma News Tribune in April:
So far, so good: Gov. Jay Inslee is living up to a campaign promise not to claim 'executive privilege' to shield government records from disclosure.
The Freedom Foundation, which sued former governor Chris Gregoire over her use of the claimed privilege to deny some 500 records requests, says it put in requests for a half-dozen sets of documents from Inslee which Gregoire had denied on grounds of executive privilege. The new Democratic governor’s staff provided all of them. Plus, a foundation spokeswoman said, no new privilege claims have been asserted since Inslee took office in mid-January.
Why again does any of this matter? As noted by Justice Jim Johnson in his dissent:
As a result of the majority's opinion, the governor is much freer to operate in the dark . . . Seeing as the majority has decided to speculate about human behavior, I will speculate that it will be extremely tempting for the governor to cloak most communications in his or her office with the privilege. Concerned citizens will have to bring difficult and expensive lawsuits in order to get a closer look at their governor. The majority has 'slammed the door on open government as it pertains to the governor.'
It's time for the people to re-open that door.