Washington Supreme Court accepts executive privilege case

FOR IMMEDIATE RELEASE

April 25, 2012 OLYMPIA—The Washington State Supreme Court on Tuesday agreed to hear a challenge to the governor's executive privilege -- a presumed "right" that Gov. Christine Gregoire asserted nearly 500 times in a four-year period to stymie dozens of public records requests.

“If the governor is allowed to withhold records through executive privilege, it would be the most significant expansion of government secrecy in years,” said Mike Reitz, general counsel for the Olympia-based Freedom Foundation, which originally brought the suit a year ago this month.

Reitz, who will argue the case along with Michele Earl-Hubbard of the Allied Law Group, contends that executive privilege is not a valid exemption to the Public Records Act. “We're also concerned with the trial court’s deferential test that gives the governor the right to automatically seal records by decree,” he said. The Public Records Act requires that all records held by government agencies are to be provided upon request, unless a law specifically exempts the record from disclosure. Nonetheless, the Governor’s Office has refused to release records related to criminal pardons, tribal gaming agreements, the Seattle Sonics, Alaskan Way Viaduct replacement proposals, judicial appointments, and medical marijuana regulations.

On July 22, 2011, Thurston County Superior Court Judge Carol Murphy ruled in Gregoire's favor, holding that executive privilege is inherent in the Washington State Constitution even though no appeals court in Washington has ever recognized that the state’s governor enjoys executive privilege. Murphy also established a three-part test for determining when executive privilege shields specific records. She ruled that the governor’s assertion of executive privilege creates a presumption that the records are privileged. The burden then shifts to the requester who must show a particular need for a document in order to overcome the governor’s privilege. If the requester can show a special need for the record, the court then weighs the requester’s need against the governor’s interests.

The Freedom Foundation appealed the case, Freedom Foundation v. Gregoire, No. 86384-9, directly to the Supreme Court of Washington on Aug. 17. “We're pleased the Supreme Court recognized the importance of this issue by accepting review of the case," Reitz said. "This is first time the court will squarely address the question of whether the governor of Washington can conceal records by claiming executive privilege.”

The Theodore L. Stiles Center for Liberty advances the rule of law and a legal climate where individuals can exercise their fundamental liberties and government is limited to its proper role.

### For more information contact:

Jessica Bowman
Litigation Outreach Specialist Theodore L. Stiles Center for Liberty
PO BOX 552 | OLYMPIA, WA 98507 P: (360) 956-3482 | F: (360) 352-1874
myfreedomfoundation.org | JBowman@MyFreedomFoundation.org