Governor shouldn't cite phantom records exemptions

OLYMPIA - Gov. Chris Gregoire likes to hide behind closed doors. Or at least that's how she wants to conduct the public's business. Under the veil of "executive privilege," Gov. Gregoire has been blacking out portions of documents or withholding them completely from requestors.

The governor's office has invoked this phantom exemption nearly 500 times since 2007 to hide documents related to medical marijuana, the Seattle Sonics lease agreement, the Columbia River, compacts with tribes-even handwritten notes on the margins of meeting memos. What is executive privilege you ask? Good question, especially considering the public records law doesn't list it as a valid exemption that would justify the governor's refusal to provide a record.

The voters of Washington enacted the Public Records Act to provide open access to public documents held by government agencies. The beautiful thing about our system is the availability of documents. If you request emails sent by your mayor to the city council, the emails are produced.  If you request copies of accident reports at a particularly narrow intersection, those reports are produced. If Gov. Gregoire is making decisions based on the counsel of the lollipop guild, then those meeting minutes should be produced.

This is not a question of what side of the political line you stand on.  In order to maintain public control and make the government work for and not against you, every citizen must be aware of what is happening, how decisions are made, and who is making them. Thousands of record requests are submitted each year to various cities, counties, and the State of Washington. If a back-room deal is affecting your tax dollars, or how you can use your land, or where your kids go to school, then you have a right and an obligation to find out what is happening.

Public records requests are an important lifeline to open and accountable government. The legislature has anticipated a variety of situations to protect both the government and the citizens from improper disclosure, and there are many exemptions in the PRA that allow agencies to protect sensitive information.  Social security numbers, bank information, private trade secrets-this information can be protected under exemptions found in the law. If the requested document has to do with on-going policy creation, then Gov. Gregoire can withhold it under the deliberative process exemption. If the information is legal advice, then it can be withheld as attorney work product. The governor has many exemptions to protect sensitive information, so why is she making one up?

Since the state legislature has never voted to create an executive privilege, there are no rules currently regulating the governor's use of the phantom exemption. Unlike statutory exemptions, executive privilege has no expiration date, no clear standards to apply, and no regulating statute. The state appellate courts have not ruled on executive privilege, so the lower courts are left without guiding case law if the issue comes before them. As of today the public is left with unanswered questions.  What kinds of records will be shielded? What decisions qualify as executive privilege?  Does the governor have a limited use of the exemption?  If the governor can withhold documents based on her own creative whim, then where does it stop?

We believe Gov. Gregoire is circumventing the law and so far only a handful of people have attempted to call her on it. There have been a few instances of savvy requestors who knew that executive privilege was not a statutory exemption, but many more do not know.  The lack of awareness is keeping citizens away from records that are rightfully theirs. 

The Freedom Foundation recently filed a lawsuit against Gov. Gregoire to stop the abuse of the Public Records Act and protect your right to open access to public documents. Government secrecy has a domino effect and the only way to stop it is to be active. It's time for the courts to address the issue of how broad the governor's executive powers are and to stop the governor from conjuring exemptions to the law.

Steven Maggi is vice president of communications for the Freedom Foundation, a free-market think tank in Olympia.