Governor hides hundreds of documents

OLYMPIA — Is Gov. Chris Gregoire constitutionally entitled to keep secrets from you? She thinks so.

The state Public Records Act mandates that all public records held by government agencies are to be available to the public, unless the record is specifically exempted from disclosure by law.

In order to encourage broad disclosure, the law states that an agency may only deny a request for a public record by citing a specific statutory exemption found in the Public Records Act or in some other statute. Unless a statutory exemption protects certain records or information, the record must be disclosed.

Yet despite this guidance, the Office of the Governor frequently asserts a privilege not found in statute to shield documents from disclosure.

Since 2007, Gov. Gregoire’s office has asserted “executive privilege” 421 times in response to 35 records requests. This privilege has been cited to withhold records concerning the state’s tribal gambling compact, the sale and departure of the Seattle Sonics, the selection and appointment of judges, the state’s regulation of marijuana, clemency petitions of death row inmates, and state employees’ public e-mail accounts.

But there’s a small problem: executive privilege is not one of the 300-plus statutory exemptions to the Public Records Act.

The governor’s office insists that the constitutional theory of privilege entitles her to shield certain discussions and documents from public scrutiny, and that this privilege trumps the mandates of the Public Records Act.

Unfortunately, the governor’s office has denied dozens of requestors access to public records on the basis of this phantom exemption. Of the records reviewed by the Evergreen Freedom Foundation, in only two instances did the Office of the Governor eventually release records after the requestors questioned the use of executive privilege. As a result, citizens who lack the resources or information to challenge the governor are denied the ability to exercise control over their government.

If Governor Gregoire believes she is entitled to shield certain documents from public review, she should request that the Legislature consider a bill to codify the exemption of executive privilege within the Public Records Act. Such a bill would allow lawmakers and citizens to openly discuss the best policy for Washington State.

But unless the Legislature approves such a privilege, the governor should default on the side of openness and stop hiding behind phantom exemptions.

Michael Reitz is general counsel of the Evergreen Freedom Foundation, a free-market policy organization in Olympia.