January 2014 Bar Bulletin
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January 2014 Bar Bulletin

Privilege Decision Makes Digging for Records Tougher

By Katherine A. George

 

Ever since Bertha, the voracious tunneling machine, began digging an underground path for Highway 99, once-fiery opposition to the $3.1-billion project is old news. Two contentious ballot measures did not stop the tunnel and Seattle Mayor Mike McGinn, who rode into office on an anti-tunnel wave in 2009, is on his way out.

Ordinarily, once a controversial decision has been made, government decision-makers are required to publicly disclose records shedding light on how and why they made the decision. But in the case of the Highway 99 tunnel, former Gov. Christine Gregoire refused to release several records of her own deliberative process, claiming she had an "executive privilege" to withhold the records indefinitely.

That claim and her similar handling of other records requests ignited a new controversy about whether the governor has a right to secrecy that no other state or local elected executive enjoys in Washington. On October 17, the Washington Supreme Court answered that question affirmatively. As a result, the public has no right to know what pressures and advice may have influenced a governor's high-profile decisions, such as supporting the tunnel, even long after the decisions are implemented.

Freedom Foundation v. Gregoire1 established that there is a constitutionally based executive privilege that shields the governor's communications from disclosure under the state Public Records Act (PRA), similar to the presidential privilege that was recognized in the Watergate-era case of United States v. Nixon,2 which involved a prosecutor's access to the White House Watergate tapes.

In Freedom Foundation, an eight-member majority held that "attempts to force disclosure of information through the PRA involve a struggle between the legislative and executive powers" and that separation of powers under the Washington Constitution prevents the forced disclosure of executive communications. Privileged executive communications are those authored or solicited by the governor or by aides who have "broad and significant responsibility for investigating and formulating" advice to the governor.

Newspapers around the state lamented the privilege decision in editorials, calling it "a needless gift"3 and "disappointing."4 At least two legislators, Rep. Gerry Pollet, D-Seattle, and Sen. Pam Roach, R-Auburn, have expressed interest in pursuing a constitutional amendment to limit or eliminate the executive privilege.

The controversy pits the public's interest in evaluating a governor's performance against the widely accepted principle that the public benefits from encouraging candid advice to the governor. The purpose of the executive privilege is to allow the governor to consult freely with advisors while formulating positions.

Then-Gov. Gregoire argued in her appellate brief, "The privilege serves a public interest in the effective discharge of a governor's constitutional duties by ensuring open and frank discussions and deliberations in executive decisionmaking and policymaking."


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