Washington Supreme Court agrees governor can withhold some records with executive communications privilege

The Washington state Supreme Court ruled yesterday in an 8-1 decision that a governor can withhold certain documents involved with policymaking under the state's public records law.

The justices agreed with a trial court that then-governor Christine Gregoire was correct when she claimed an executive communications privilege that allowed her to withhold certain documents from the Freedom Foundation. The Washington-based educational research organization sought 11 documents from the governor involving negotiations to replace the Alaskan Way Viaduct in Seattle, the Columbia River Biological Opinion and proposed marijuana legislation, according to court documents. The governor handed over five documents and a portion of a sixth but refused to disclose the rest. The Foundation sued Gregoire under the Public Records Act.

"Courts have widely recognized that the chief executive must have access to candid advice in order to explore policy alternatives and reach appropriate decisions," Justice Mary Fairhurst wrote in the opinion.

"Refusal to recognize the gubernatorial communications privilege would subvert the integrity of the governor's decision making process, damaging the functionality of the executive branch and transgression the boundaries set by our separation of powers doctrine."

The governor argued that going by the framework established in the case of United States v. Nixon the Foundation had to give a specific need for the documents, which they had not done. In U.S. v. Nixon, the United States Supreme Court recognized a limited executive privilege to allow the president to withhold certain documents in the realm of foreign or military affairs. The privilege is not absolute, however, and is subject to court review.

Justice James Johnson cast the one vote opposing giving the governor this privilege. "The majority ignores our state's constitution, statutes and populist tradition and does great damage to over 120 years of open government in Washington," he wrote in his dissent.

Fairhurst also wrote that the privilege must extend beyond the governor to senior advisers in the executive branch, saying that they must have the ability to give and obtain frank advice in order to help shape policy decisions.

The protected communication must "occur for the purpose of fostering informed and sound gubernatorial deliberations, policy making and decision making," the court stated. Only the communications meeting these standards will be covered by the privilege.

The governor must provide to the court certain things in order to determine whether or not the communication is privileged. He or she will have to provide a log of the documents, the author and recipient of each document and a description of the subject matter.

Open government advocate state Sen. Pam Roach told the Auburn-Reporter.com that she is disappointed and announced today that she will be introducing an amendment in 2014 to close the loophole.

"There are already more than 300 exemptions to public records access, which is a long way from the 10 that existed in 1972 when the Public Records Act became law. We should be eliminating exemptions, not making it more difficult for citizens to review the work of elected officials," she told the newspaper.