Elected officials serve at the pleasure of the people, and those officials are accountable to the people for every decision made. This is why the people, with rare exceptions, should have access to documents created by public officials.
Washington state’s Open Records Act is written to ensure public disclosure whenever possible. The law does allow for exceptions. The Legislature has approved about 300 for a variety of circumstances.
But that list does not include allowing the governor to invoke executive privilege to keep documents from the public.
Yet, Gov. Chris Gregoire believes the state’s chief executive has broad power to keep some documents from the public.
The Freedom Foundation, an Olympia-based libertarian think tank, has a contrary view and has taken legal action to force release of the documents. The Foundation contends the Governor’s Office has cited executive privilege at least 500 times in the last four years as grounds for withholding records. Currently at issue are six documents on a variety of subjects, including the Alaskan Way Viaduct replacement, medical marijuana and criminal pardons.
The case was argued before the state Supreme Court on Thursday. The Foundaton contends the state constitution does not specifically grant executive privilege to withhold government documents from public view.
The attorney for the state told the high court justices that executive privilege is inherent in the constitutional guarantee of separation of powers and that it is necessary so advisers can talk candidly. A Thurston County Superior Court judge earlier upheld the state’s view, citing a 1970s U.S. Supreme Court decision where the court, in a case involving President Nixon, formally recognized the doctrine of executive privilege as part of the balancing of power between the president and Congress.
This might hold true at the federal level, but state law and the state constitution are the focus.
Executive privilege is not in the state constitution.
We understand why elected officials don’t want every documents to be public information. The information can make it more difficult to govern for a variety of reasons — including being embarrassed by the content.
That’s not reason enough. If Gregoire’s office wants to withhold any documents, the staff must provide a specific exemption for each document. The court should overrule the Thurston County decision thus protecting the people’s right to know what their government is doing.