Washington state Supreme Court hears Gov. Gregoire executive privilege case

The Washington state Supreme Court heard arguments on Sept. 20 on whether Gov. Chris Gregoire can claim an “executive privilege” as a legitimate reason to conceal records from public scrutiny. The case was brought in April, 2011, by The Freedom Foundation, an Olympia, Wash.–based member of the National Freedom of Information Coalition. The Foundation said those records dealt with a controversial, $2 billion proposed tunnel to replace the Alaskan Way Viaduct, in addition to other documents.

The Foundation and its supporters argued that records can only be shield from disclosure under the state Public Records Act (PRA). They said that executive privilege isn't a legitimate exemption and will result in the disclosure of a broad range of government records.

The state Supreme Court agreed to hear the case in April, 2012.

After the debate on Sept 20, the Supreme Court didn't announce when the ruling will come out, but court decisions usually come six to nine months after a hearing.

Watch the Washington state Supreme Court debate
The Supreme Court docs (Search Freedom Foundation v. Christine O. Gregoire or No. 86384-9)
Governor's response to amicus curiae briefs (PDF/909 KB)
Amicus curiae brief (PDF/216 KB)
Motion to file amicus brief (PDF/114 KB)

Latest news:

Governor’s Office: privilege claim seldom used

From The Olympian:

Olympia, Wash. (September 20, 2012) — Arguments just ended this morning (Sept 20) at the Washington state Supreme Court over Gov. Chris Gregoire’s claim she can shield some government documents from public disclosure using a claim of “executive privilege”. The case was brought by the Freedom Foundation against Gregoire, and open-government lawyer Michele Earl-Hubbard argued this morning on behalf of the foundation.

In arguments this morning, Justice Jim Johnson was quite blunt in telling Deputy Solicitor General Alan Copsey of the Attorney General’s Office that there is “no suggestion” in law of such a privilege. Copsey is defending the governor’s claim, arguing that the right to privilege is grounded in the U.S.v. Nixon case of 1974 when the disclosure of secret White House tape recording was at stake.


Court upholds Gregoire fine over records violation

From The Olympian:

Olympia, Wash. (September 12, 2012) — The Court of Appeals has ruled that a $2,175 fine against Gov. Chris Gregoire’s staff was appropriate for its illegal withholding of a three-page briefing document that Olympia activist Arthur West asked for in 2009. The memo was part of a more sweeping request by West for records that showed the governor's interactions with the Washington State Association of Counties, and the Governor’s Office failed to acknowledge the request within the required five days.


The document denied to West was a three-page briefing prepared for the governor by then-policy aide Kathleen Drew, who now is running for secretary of state. The briefing was described as a “governor’s meeting memorandum” in preparation for a meeting with leaders of the Washington State Association of Counties.

NFOIC joins other nonprofits, newspapers in amicus brief

From The National Freedom of Information Coalition:

COLUMBIA, Mo. (August 27, 2012) — The National Freedom of Information Coalition (NFOIC) has joined media associations and good government groups in asking the Washington state Supreme Court to limit Gov. Chris Gregoire’s authority to withhold documents from public scrutiny.

The case grew out of a lawsuit filed in April 2011 by the Olympia, Wash.-based Freedom Foundation, an NFOIC member organization in Washington state, over the governor’s claims of “executive privilege” as a basis for shielding records from disclosure.

At issue in the case are Gov. Gregoire’s claims of executive privilege to conceal records regarding a controversial, $2 billion proposed tunnel along the Seattle downtown waterfront to replace the elevated Alaskan Way Viaduct, in addition to other documents.

Other organizations supporting the Freedom Foundation’s position in amicus briefs filed in the lawsuit are Allied Daily Newspapers of Washington, the Washington Newspaper Publishers Association, the American Civil Liberties Union, the Institute for Justice and the Washington Coalition for Open Government (WCOG), also an NFOIC member organization.

The Freedom Foundation and its supporters say the governor should only be able to shield records from disclosure under the provisions of the state Public Records Act (PRA), which includes a “deliberative process” exemption. Gregoire’s attorneys say she is neither seeking to invalidate the PRA nor claim general immunity from it. They contend, however, that the constitutional separation-of-powers doctrine gives her additional authority to withhold documents in some instances.

Gregoire is not the first Washington governor to invoke the doctrine of executive privilege. But the Freedom Foundation lawsuit alleges she has invoked it more frequently than any previous governor.

A trial court judge ruled in the governor’s favor in June 2011, holding that executive privilege can act as an exemption to the Public Records Act and that a governor who asserts executive privilege can withhold records from the public. Freedom Foundation and its supporters are asking the state Supreme Court to overturn that ruling. The court agreed to hear the case last April.

Organizations involved are concerned that, if an implied executive privilege is recognized for the governor of Washington, many other government executives at the state and local level will invoke the alleged privilege to evade the Act’s disclosure requirements.

The amicus brief filed last Tuesday, August 21, said recognizing a more expansive privilege than what is permitted under the public disclosure law would damage the PRA “by inviting executives at all levels of state and local government to claim that their preliminary deliberations are equally deserving of broader secrecy.”

"We certainly recognize there are times when a government executive may need to consult with aides in private and to receive confidential information and advice,” said Kenneth Bunting, Executive Director of the NFOIC. “But the Washington PRA has always provided adequate protections for that. It is disheartening to see a highly respected Democratic governor embracing a Nixon-era legal doctrine that has its very origins in power abuses and cover ups."

A PDF of this release is available here. (348 KB)

State Supreme Court to rule on executive privilege

From The Seattle Times:

The Washington state Supreme Court has agreed to hear a case that deals with the extent of the governor’s executive privilege when it comes to withholding documents from the public.

Olympia, Wash. (April 26, 2012) — Gov. Chris Gregoire believes she can keep some documents from the public because of executive privilege. The Freedom Foundation believes she can't because no such exemption exists in state law.

This week the state Supreme Court accepted a case that will decide who's right.