From NFOIC: In the ruling that open government groups view as a setback, the Washington state Supreme Court has ruled that constitutional separations of power gives that state's governor an "executive privilege" to withold government documents from disclosure that is broader than what might be recognized under a statutory open government law.
The ruling was 8-1, with Chief Justice Barbara Madsen and two others signing concurring opinions that criticized the majority for recognizing but not defining limits on that constitutional privilege. Justice James M. Johnson, the lone dissenter, criticized the majority ruling even more harshly, saying that it "ignores our state's constitution, statutes, and populist tradition and does great damage to over 120 years of open government in Washington."
The case, styled Freedom Foundation v. Christine Gregoire, grew out of a lawsuit filed in April 2011 against the former governor by the Olympia, Wash.-based Freedom Foundation, one of two NFOIC member organizations in Washington state. NFOIC and the Washington Coalition for Open Government (WCOG), another NFOIC member organization in Washington state, joined media associations and good government groups in support of the Freedom Foundation.
In a release from the Freedom Foundation, Dave Roland, Director of the Freedom Foundation’s Theodore L. Stiles Center for Liberty, responded to the decision:
“The Washington State Constitution makes clear that the people of this state are supposed to control their government. Today’s decision abandons that constitutional principle and strips the people of the crucial ability to inform themselves about the decisions their governor has made and, perhaps more importantly, the information the governor relied on to make those decisions.”
NFOIC's executive director Kenneth Bunting said he agrees with cautions articulated in the concurring opinions that recognizing a constitutional privilege without clearly defining its limits could give rise to overreaching abuses.
"We have never disputed that there are times when a governor might need to receive confidential advice from top advisors," Bunting said. "But we would've been much more comfortable if that nondisclosure privilege was defined by the Public Records Act than having it loosely defined and based on a standard that grew out of the cover-up that led to President Nixon’s impeachment."
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