Judge rejects Governor's claim of executive privilege
Posted by Mike Reitz - March 03, 2010A Thurston County Judge has rejected a claim of executive privilege under the Washington State Public Records Act in regard to an OFM document prepared for negotiations between the Governor and the Washington Association of Counties. (West v. Gregoire, Thurston County No. 10-2-00063-9)
Declining to rule on the issue of whether the executive privilege existed at all, Thurston County Judge Paula Casey, following an in camera inspection, declared that the document in question, a policy briefing prepared by OFM staff Kathy Drew, was not subject to a claim of privilege, even if such a privilege were recognized to exist.
The State has been given two weeks to appeal the determination before the document is disclosed. The record in question is an April 8 memo prepared by the OFM policy office for the Governor to review prior to a meeting with the WSAC's Executive Director and staff.
The Court ruled that the document did not contain any exempt advice, and noted that it could not imagine any circumstances under which such a record would be subject to a claim of privilege. The Court also noted that in the over 30 years since the Public Disclosure Act was enacted, no appellate court has ever ruled on the subject of whether executive privilege existed in the State of Washington.
The request stems from discovery conducted in regard to the WSAC, which was itself declared to be subject to the PRA on by a Court order entered on February 5, 2010. Solicitor General Maureen Hart represented the Governor.
Thoughts? Add Comment -
Mel Carrothers said on Mar 04 2010 at 1:54pm
Just another example of how the Democratic controlled Washington legislature is trying to hide their inept abilities to govern this state. The Governor and legislature is pulling the same tactics that are being used in DC.
pudge said on Mar 05 2010 at 12:18am
What? How could he not rule on whether the privilege even exists?
The ruling is ... incredible. Whether or not the law has something it clearly doesn't have is a "mystery" to him?!
I mean, I get what he's saying ... it's basically the John Yoo argument, that the executive has these unenumerated powers that just flow from the fact that the executive is the executive, and these powers are made up as we go along.
If there were some history of it, there might be an argument there. But there isn't. So we look to the legislature, not to some invented powers there's no record of.
I am no expert, but it seems to me the question of whether there is a privilege must be answered before the question of whether the document falls under that privilege. The judge seems to be doing it backward because he doesn't want to answer that question, which may be convenient, but it's not good law.
Lew Waters said on Mar 05 2010 at 1:30am
Isn't it odd how these Democrats continue to press to have citizens information who signed citizen initiative petitions made public for activists, yet fight to keep their votes and information hidden from public view?