Citizens and the press would be guaranteed access to public records from the governor’s office, under an amendment to the Washington Constitution that state Rep. Gerry Pollet will propose in the 2014 Legislature.
Pollet’s constitutional right-to-know amendment responds to the recent “sweeping state supreme court decision granting the governor ‘executive privilege’ to refuse to disclose public records.” He likened the state high court’s decision to the so-called executive privilege claimed 40 years ago by former President Richard Nixon.
“We must establish such protection in law for this fundamental right of the public to know what our state government is doing – and who is influencing our governor,” Pollet said. “The amendment will prevent this wrongful use of executive privilege as a way to avoid disclosure of records. I believe such an amendment is vital to protecting democracy here in our state of Washington.”
Pollet praised Gov. Jay Inslee for Inslee’s stating that he would not be claiming executive privilege to deny public review of his public records while in office. The case decided on Oct. 17 involved former Gov. Christine Gregoire’s assertion of executive privilege.
As a young law-school graduate three decades ago, Pollet’s first lawsuit successfully challenged then-Gov. John Spellman’s refusal to release to the public and news media his gubernatorial communications with Wall Street bondholders regarding the failed Washington Public Power Supply System (WPPSS). Spellman was advised by Wall Street operatives to have the state’s taxpayers, rather than Wall Street, pay the debt on billions of dollars of bonds issued illegally by WPPSS for canceled nuclear reactors. Pollet argued and won a court decision in 1984 ordering Spellman to disclose documents from Wall Street bond interests.
“Sunlight and disclosure, as is the case with most public records, proved to be the most powerful disinfectant – putting an end to the effort to have Washington’s taxpayers bail out Wall Street for the WPPSS debt and debacle,” Pollet pointed out.
Pointedly, he noted that under the recent Washington State Supreme Court decision, “those Wall Street schemes to have Washington taxpayers bail out the WPPSS bond holders and issuers would never have become public.”
The amendment which Pollet will introduce reflects strong statements from some of the supreme court justices concerning this latest case. He said their statements urge both that the court should have greatly limited the privilege in question, and that the decision opens the door to enormous abuse.
Chief Justice Barbara Madsen wrote in urging that the decision should be much more limited: “The governor’s decisions should not be entirely shielded from public view when the position naturally faces lobbying and other potential influences of which the public may need to be aware.” Madsen added: “Accordingly, I agree with [Associate Chief Justice Charles W.] Johnson’s concurrence to the extent that he advocates limitations on the privilege and proposes eliminating the Nixon showing of need requirement for in camera review.”
Pollet, a board member of the Washington Coalition for Open Government, has supervised a program training law students in open-government and environmental law. His 46th Legislative District includes the communities and neighborhoods of North and Northeast Seattle, Lake Forest Park, and Kenmore.
NOTE TO EDITORS, EDITORIAL-WRITERS, AND REPORTERS:
State Rep. Gerry Pollet will introduce and sponsor an amendment to the Washington State Constitution — the “Right-to-Know Amendment” — in the 2014 legislative session. Pollet’s proposed amendment is a response to the recent Washington State Supreme Court decision granting the governor “executive privilege” to refuse to disclose public records. The following memorandum was prepared by the 46th Legislative District lawmaker as background information on his proposal.
Freedom Foundation v. Gregoire
The Washington State Supreme Court, in a decision reminiscent of former President Richard Nixon’s claims of “executive privilege,” has created a sweeping new privilege preventing disclosure of embarrassing public records by a governor. The decision in Washington Freedom Foundation v. Governor Gregoire (issued Thursday, October 17, 2013) creates a new constitutional privilege exempting records from public disclosure in Washington. The recent decision relies on the U.S. Supreme Court’s opinion in the famous Nixon case, but – unlike the U.S. Supreme Court in Nixon – finds that the governor can refuse to disclose records which are essential to public debate on public policy.
The Washington Supreme Court’s ruling puts a trial judge in the position of deciding – without any clear standards – what is a public interest in a policy worthy of disclosure trumping claims of executive privilege. This is antithetical to government accountability and democracy.
Our state high court’s decision requires reporters or civic activists to identify why they need to see a public record. Thus, the court may decide if they have a legitimate public interest. The problem is that since the requester has not yet actually seen the record, he or she cannot meet the burden of showing why the disclosure will serve the public interest. Further, this decision requires requesters to identify a particular interest in why they are pursuing the record from the governor’s office. Thus, the decision forces disclosure of their political purpose that might well, of course, be at odds with the governor’s interests. Such reasoning runs contrary to a major principle of our Public Records Act (PRA), which is that government has no right to ask you in advance why you want to see a public record.
People do not yield their sovereignty – asserts the PRA preamble. Of course, this law cannot trump our state constitution. But it does reflect a fundamental principle of our state constitution, which the state supreme court has not honored in this decision. Instead, the supreme court viewed this as a separation of powers between legislative and executive branches. However, the conflict here is between the governor and his or her office — and the people, who retain all unstated powers in our Washington State Constitution. Our constitution does not give the governor executive privilege to withhold documents under a power to keep secret the records of correspondence with those outside the governor’s office seeking to influence policy. The same is true for data relied upon in such policy decisions.
The court discussed our state’s PRA protection of internal policy advice records and rejected it on the following basis:
“The dissent offers no reasoning or evidence that any of these other privileges provides sufficient protection to encourage candid advice. For example, the most topical of these exemptions, the exemption for preliminary drafts and similar materials, ends when the policy is implemented. (Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 257, 884 P.2d 592. 1994). The communications privilege continues to shield the governor’s conversations after this exemption ends, providing additional incentive to provide candid advice, the constitutional rationale for the privilege.” (Freedom Found. v. Gregoire, No. 86384-9 at 15, 16.)
This decision is not about “candid advice,” despite the court’s discussion of that issue. There is a fundamental principle in constitutional law that courts must avoid constitutional determinations when there is a less sweeping route available to protect the same interest. If candid advice was the interest that was being protected, the court should have recognized that the PRA exempts the provision of advice from internal advisers and advice from legal counsel. What our Washington State Supreme Court has done is to create a huge exemption to disclosure of OUTSIDE communications with those seeking to influence the governor, and for the data and factual information claimed to be relied upon by a governor, based on a nonexistent constitutional provision.
The court could have, and should have, limited any constitutional privilege to extending the internal advice exemption after the implementation of the policy. Instead, the court has created a broad new, sweeping exemption cloaked in constitutional privilege — which far exceeds the exemption for internal advice.
My proposed state-constitutional amendment will protect the public’s right to know who is influencing our governor and what information is being relied upon in making public policy. In addition to restating the powerful preamble to our State’s Public Records Act, the proposal for an amendment under discussion would state in the Constitution for the first time that public records are the public’s, and that the public right to know about governmental activities and communications may only be limited in very specific circumstances, such as for personal privacy, security and administration of justice by our courts. There are over 300 exemptions to our state’s Public Records Act which have been adopted by the Legislature. The amendment which Rep. Pollet is discussing would state that exemptions must be narrowly tailored to meet specific overriding rights, such as personal privacy, and place in the Constitution the prior judicial precedent that the right to disclosure shall be broadly applied and any exemptions narrowly interpreted.
The amendment under discussion will limit the constitutional executive privilege to internal advice that falls within the existing exemption for such advice, but continues it after the policy is implemented. The proposal will ensure that public disclosure continues for outside communications or the facts and data (as opposed to advice) relied upon. Democracy requires that the basis for policies be subjected to scrutiny and debate – not shielding the facts and data claimed to support a governor’s decisions.
The court purported to limit the newly found constitutional privilege to advice given within the governor’s staff (or legal counsel). However, this decision actually digs a dangerous hole with an anti-democratic presumption of secrecy by requiring people seeking records to prove that records they have not yet even seen – are essential to a “public interest.” The governor and then later a trial judge are granted authority to decide what is the public interest and whether disclosure is in the public interest. Here is the court’s statement that it narrowly limits this new privilege:
“Above all, the constitutional communications privilege applies only to communications ‘”authored'” or “‘solicited and received'” by the governor or aides with “‘broad and significant responsibility for investigating and formulating the advice to be given”‘ to the governor.”
My proposed constitutional amendment would in fact limit the privilege to this specific policy statement by the court.
However, the court’s actual decision puts a governor (who has already asserted that he or she doesn’t want to disclose records) and a judge in the position of deciding what the public and news media need to know “in the public interest.” The court’s decision gives deference to a governor’s assertion that records should be kept secret, which can only be overcome if a court decides that the citizen or news media requesting the records has a “need” for them that outweighs a public policy of shielding the records from disclosure. Under the recent decision in Freedom Foundation v Gregoire, the trial court must determine whether the requesting party’s need for the material outweighs the public interests served by protecting the chief executive’s access to candid advice for purposes of formulating policy. The person requesting the records, however, has a near impossible burden to prove they “need’ the records for such a public purpose despite the fact that they have never seen the records or a detailed description of them. Thus, the amendment under discussion would also restate prior law that governmental agencies may not ask why a citizen or reporter wants a public record or place a burden on the public to justify access to the public’s records.