Supreme Court exempts governor from disclosing public records

“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.” -Washington’s Public Records Act, passed by the people as Initiative 276 in 1972

Last week, the state Supreme Court issued a ruling that is deeply damaging to the ideal that state government should be open and transparent. In an 8-1 decision (and thank you to Justice Jim Johnson for his solid dissent), the court said that the separation of powers between the different branches implies that the executive branch has an “executive privilege” that gives it the right to shield from the public’s view documents regarding the advice a governor is given when making decisions, whether that advice comes from staffers and advisers, lobbyists, or the public at large.

This is a troubling ruling. Even if the court is right that there is an implied separation-of-powers argument for an exemption, the court ruling as it stands now allows a “qualified privilege” that isn’t very qualified at all. The practical effect will be that, instead of it being incumbent upon the governor’s office to prove why a document can be withheld under a specific exemption from the Public Records Act, the requestor of the documents will have to take the expensive route of going to court to prove a need for the documents. That’s backwards, and it’s damaging to the public’s right to know.

The Public Records Act, which was passed by the voters, says that the people “do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” Yet the court has ruled that the separation of powers implied in the state constitution trumps the Public Records Act and the clear intent voters gave state government about government transparency. As Peter Callaghan notes, if the exemption includes lobbying by outside groups for certain decisions by a governor, “it is hard to come up with documents that wouldn’t fall under this exemption, a result that would end our ability to see who is influencing the governor.”

Regardless of the legalities, the practical path forward is clear: we need a state constitutional amendment to fix this ruling and make clear once again that the people have not given up the right to know about how government decisions are made. State constitutional amendments must originate in the state legislature, which means we need leaders from both parties to step up and protect the people’s right to know. After that, the matter would go to the voters – and it’s obvious the people would overwhelmingly approve this change.

— Rob McKenna

 

Ruling gives governor’s office ‘Nixon-style’ executive shield

If Gov. Jay Inslee wants to withhold documents from the public about how he came to policy decisions — on anything from water quality regulations, to religious hospital mergers, to union negotiations — he now has the right to do that, as do all future Washington state governors.

The Washington state Supreme Court ruled today in an 8-1 decision that the governor can claim “executive privilege” and refuse to make documents public indefinitely.

“What the court did today was create a Nixon-style privilege,” said Jason Mercier, the director of the Center for Government Reform at the fiscally conservative think tank, the Washington Policy Center.

Read more: http://www.bizjournals.com/seattle/blog/2013/10/nixon-style-executive-privilege.html

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.