Thurston County Superior Court Judge Carol Murphy ruled against the Freedom Foundation today, determining that executive privilege can be asserted by the governor to withhold records from a public records request.

The Freedom Foundation filed its lawsuit against Gov. Christine Gregoire on April 4, challenging the governor’s use of executive privilege and asking the court to rule that the privilege was not an exemption to the Public Records Act. Judge Murphy ruled that executive privilege does exist, with some limitations, but left open the question of whether or not it would apply to the documents at issue in this case. A second hearing to address this issue will be scheduled in the near future.

The Freedom Foundation discovered that Gov. Gregoire had been using executive privilege to shield documents, e-mails, drafts of questions, memos to outside agencies and various other public records that had been requested using the Public Records Act.

Gov. Gregoire based her defense of executive privilege in part on the notion that it would be a violation of the separation of powers doctrine for the Legislature or a judge to tell the governor how to disclose public records.

The Washington State Public Records Act (Chapter 42.56 RCW) 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 other words, unless a statutory exemption protects certain records or information, the record must be disclosed. The Foundation argued that executive privilege is not among the 300-plus recognized statutory exemptions found in the Public Records Act.

Case background is available here.