Executive Privilege Case Tests the Governor's Vague Claim of Right to Secrecy

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Does the governor have the right to to shield documents from public view simply because she's the governor? That's a question the state Supreme Court late last month announced it would consider.

The case is brought by the Freedom Foundation, a libertarian think tank based in Olympia. The group is challenging Governor Chris Gregoire's claim to an "executive privilege" that she says allows her to withhold documents from public disclosure. According to the foundation's research, Gregoire claimed this privilege roughly 500 times between 2007 and 2010.

But there is no executive privilege spelled out in either the state Public Records Act, or the state constitution. So the foundation sued, citing a half-dozen examples of withheld documents.

Alan Copsey, the deputy solicitor general in the state Attorney General's office, tells Seattle Weekly that the privilege "flows from the separation of powers." He explains: "Each branch of government has a core function and in order to perform it property, it needs to have room to operate." In the governor's case, he continues, that means letting the state's chief exec privately "consult with her advisers before making a decision."

Freedom Foundation attorney Mike Reitz, however, says the documents withheld by Gregoire are not just communications between the governor and her advisers. He cites, for instance, a draft memorandum of agreement--along with Gregoire's handwritten notes--between the state, King County, and city of Seattle over the viaduct replacement.

The question is, says Copsey, who were those handwritten notes for? He suggests that they may have been intended for the governor's aides.

Regardless, the real problem with the state's position is its vagueness. "We're not talking about how broadly it should be applied," says Copsey when asked what exactly the executive privilege encompasses. But somehow Copsey is sure that documents reflecting the governor's back and forth with advisers "falls squarely within the privilege."

How can you possibly argue about something when you don't know what it is? Or whether this arguable privilege can be used by other parts of the executive branch besides the governor? Reitz says that the state's attorney general or auditor, for instance, might decide their documents can be shielded from disclosure too.

The trial court bafflingly bought the governor's position, citing decisions in other states granting an executive privilege. But now Washington's highest court will make the call for our state.

If the Supreme Court does indeed uphold the privilege, Reitz contends, "it would be the most significant expansion of government secrecy in years." He expects a hearing on the matter in the fall.

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