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Washington Supreme Court: Executive Privilege Allows Governor To Withhold Documents Under Public Records Act

October 17, 2013 posted by Eric Christensen

In a milestone decision, the Washington Supreme Court today upheld Gov. Christine Gregoire's assertion of executive privilege to prevent disclosure of documents under the Washington Public Records Act. Concluding that the "cardinal and fundamental" constitutional principle of separation of powers overrides the Public Records Act's "strongly worded mandate for broad disclosure of public records," today's decision permits the Governor to assert executive privilege over documents created in the process of formulating policy and prevent disclosure of those documents under the Public Records Act. The decision effectively creates a new Public Records Act exemption for documents created in the executive branch policy formulation process. It also shifts the burdens of proof that generally apply under the Public Records Act. (Freedom Foundation v. Gregoire, Wa. Sup. Ct. No. 86384-9 (decided Oct. 17, 2013)). Today's decision arose from a dispute over a half-dozen documents created by Governor Gregoire and her senior advisory staff discussing controversial topics such as replacement of Seattle's Alaska Way Viaduct, the Columbia River Biological Opinion, and medical marijuana legislation. An employee of the Freedom Foundation requested eleven documents on these subjects under the Public Records Act, which generally requires all government documents to be released upon request unless a specific exemption applies. Gov. Gregoire released five of the documents and a redacted version of a sixth. The remaining documents were withheld, but rather than following the usual course of relying on a specific statutory exemption to justify withholding, the Governor's office asserted executive privilege over the documents. The Governor argued that executive privilege is inherent in the separation of powers scheme implied in the Washington constitution, and the documents were subject to executive privilege because they were used by the Governor to formulate policy. The lower court agreed with these arguments and the Supreme Court accepted direct review. Following the framework of United States v. Nixon, the U.S. Supreme Court case involving President Nixon's attempts to prevent release of the Watergate tapes, today's opinion finds that Washington's Governor enjoys a qualified executive privilege. Under Nixon, the Executive is entitled to withhold documents that were part of the Executive's deliberative policy-making or decision-making process. If the Executive asserts the privilege, the documents are presumed to be privileged and the party seeking the documents must overcome the presumption by demonstrating a "particularized need" for the documents that serves an interest outweighing the "public interests and constitutional interests served by executive privilege." If a sufficient showing is made, the court must then examine the documents in camera and order their release if the need for the documents outweighs the interests served by the privilege. The Nixon presumptions run counter to the presumptions incorporated into the Public Records Act. Under the Public Records Act, all documents are presumed to be public information and the agency withholding the records bears the burden of proving that the documents are properly withheld under one of the statute's exceptions. Today's opinion also expands governmental authority to withhold documents in another important respect. The Public Records Act includes a provision, RCW 42.56.280, allowing government agencies to withhold pre-decisional drafts, recommendations, and other documents that are part of the formulation of an agency's policies. This provision is akin to the executive privilege recognized in today's decision. However, the courts have generally held that documents withheld under 42.56.280 must be released once the agency has made the relevant decision. Today's decision goes beyond that, concluding that the Governor may withhold documents under the executive privilege even after the relevant decision has been made. Five justices joined the majority opinion upholding the Governor's authority to withhold deliberative documents under the executive privilege. Three other justices, in two separate concurring opinions, agreed with the majority but urged that a modified form of the Nixon analysis should be applied in Washington, so that a party requesting documents need not make a specific showing of need. Justice James Johnson, the only justice to side with the Freedom Foundation, issued a lengthy and strident dissenting opinion, arguing that the majority has allowed the Governor to be "much freer to operate in the dark." If you have any questions about this post or the Washington Public Records Act, please contact a member of GTH's Municipalities & Municipal Entities practice group. We have decades of experience in assisting Washington cities, PUDs, and other municipal entities in dealing with the Public Records Act, the Open Meetings Act, the Washington Constitution, public contracting, and other aspects of municipal law in Washington.