Since 2007, the Office of the Governor has invoked “executive privilege” nearly 500 times to withhold records from the public.

Why is that a problem? The Public Records Act says that public agencies must produce copies of records upon request unless a specific statutory exemption applies. Executive privilege is not one of the 300 exemptions listed in the law.

Gov. Gregoire could rely on legitimate exemptions to withhold some records, but instead invokes this constitutional theory to lock away records that are of significant interest to the public. The records include documents about state’s tribal gambling compact, the departure of the Seattle Sonics, the selection and appointment of judges, budget issues, and clemency petitions of death-row inmates.

Executive privilege is generally understood to protect an executive’s deliberations with close advisers. Yet Gregoire has asserted it to protect communication that falls far outside these parameters including communication amongst her staff, communication from other state agencies, and meeting memos with legislators.

Government accountability is impossible if elected officials refuse to provide information about their actions and decisions. When in doubt, the governor should err on the side of disclosure rather than claiming a phantom exemption.

Last week the Freedom Foundation published a new policy highlighter on this issue. Read the report here.