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The Libertarian group Freedom Foundation has recently filed suit against Washington Governor Christine Gregoire, alleging that the Governor withheld public records under an “Executive Privilege” exemption not found in the text of Washington’s Public Records Act (“PRA”), 42.56 RCW.

According to the Foundation’s website, the suit was commenced after a member of the Foundation requested documents from the Governor’s Office in April 2010, including records dealing with “medical marijuana legislation, Alaskan Way Viaduct replacement proposals, and the Columbia River hydro system.” The complaint seeks production of the requested records (some of which were withheld or redacted), attorneys’ fees and penalties for violating the PRA. The complaint only addresses the Governor’s response to the April 2010 request; however the Freedom Foundation has also alleged that since 2007, Gregoire has used the executive privilege 500 times in efforts to withhold records.

Under Washington’s PRA, public agency records must be made available to the public upon request unless they're covered by a specific exemption, identified in the PRA itself, or covered by other applicable Federal and State laws. See WAC 44-14-010. There is a strong policy in favor of disclosure, and exemptions are construed narrowly. See Progressive Animal Welfare Soc'y. v. Univ. of Wash., 125 Wn.2d 243, 262, 884 P.2d 592 (1994) (“PAWS II”). Although there are many exemptions listed in the PRA, the statute does not contain a general “executive privilege” exemption. Nor is the executive privilege listed as an exemption recognized by the Washington State Attorney General in its Model Rules on Public Disclosure.  See WAC 44-14-06002. 

According to a recent article in the Seattle Times, the Governor's Office says that the source of the executive privilege is the constitutional guarantee of separation of powers. As the Times reports, there has only been one definitive Washington court case addressing executive privilege, where a Snohomish County trial court made an oral ruling in favor of the exemption. However, in that case the executive privilege was raised in the context of documents requested in litigation, and used in conjunction with the deliberative process exemption, which prevents disclosure of records used as part of the policy and decision-making processes during the time such decisions are being made. PAWS II, 125 Wn.2d at 256. It is important to note, however, that after a decision is finalized, the records may be subject to disclosure. Id.

A Washington court may find that the deliberative process exemption applies to at least some of the records Freedom Foundation alleges were withheld in April 2010, particularly if the records reflect ongoing decision and policy making within the Governor’s Office. However, it remains to be seen whether the courts will directly address the issues of executive privilege and separation of powers. On the other hand, facing a parallel separation of powers issue in 1986, the Washington Supreme Court held that the judiciary is not included within the reach of the Public Records Act. Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986).

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The March 30 edition of the New York Times reports that a research group in Michigan has made a public records request of the University of Michigan, Michigan State University and Wayne State University for any e-mails involving the Wisconsin labor turmoil, including any e-mails with reference to Rachel Maddow – the MSNBC talk show host.

Greg Schulz, the director of academic freedom for the American Association of University Professors is quoted as asserting “We think this will have a chilling effect on academic freedom. We’ve never seen FOIA requests used like this before.”

In the State of Washington, however, the issue of academic freedom v. freedom of information has long been decided in favor of the freedom of information. In 1994 the Washington Supreme Court held that documents regarding research proposals for primate experiments that didn’t fall within specific statutory exemptions were subject to disclosure under the State’s Public Records Act – despite the contention of the University of Washington that academic freedom protected those records from disclosure. Progressive Animal Rights Society (PAWS) v. University of Washington, 125 Wn.2d 243, 884 P.2d 592 (1994).

In PAWS, the Washington Supreme Court directly addressed the University’s argument that “the grant proposal should be exempt in its entirety because disclosure of a researcher’s preliminary ideas violates a putative constitutional privilege of academic freedom.” Rejecting that argument, the Court held that neither the popular initiative that first adopted Washington’s Public Record Act nor the legislature in later amendments had created an exemption from the Public Records Act for academics. Further the Court noted that, “Even assuming there were plausible grounds for doing so, it would be difficult to grant special First Amendment protection to public university employees while denying it to other state employees.”

On the other hand, both the trial court and the Supreme Court held that information in the proposal that would reveal research hypothesis, data, valuable formula and the like should be redacted from the documents as they are covered by exemptions to the Public Records Act. The Court also excluded the peer review “pink sheets” from disclosure, as they were documents reflecting a deliberative process for an unsuccessful proposal and thus exempt under the “deliberative process” exemption. But, the Court also noted “Once the proposal becomes funded, it clearly becomes ‘implemented’ for purposes of this exemption and the pink sheets thereby become disclosable.”
 

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