Washington’s Supreme Court on Thursday will hear an argument over, basically, the state government’s right to withhold information from the people. Ironically, and regrettably, that argument is being waged in what has become a model state for government transparency.Washingtonians are proud of the Public Records Act, a voter-driven law that has illuminated the people’s government for four decades. This law’s advanced age is seen in the relatively low number in its name: Initiative 276. These days, initiative names run higher than 1,100.
After all these years, however, the seemingly simple concept of public access to public records must be vigilantly and repeatedly upheld. The case to be heard on Thursday pits Gov. Chris Gregoire against the libertarian group Freedom Foundation. Gregoire and her attorneys have exerted executive privilege to keep certain memos secret.
The difference between Gregoire’s self-declared power and that of a president was tactfully explained by The Seattle Times, which editorialized that “the governor is a lesser official; she is not dealing in military, diplomatic or national-security secrets. The ‘secrets’ here were memos from her advisers concerning a medical-marijuana bill in the Legislature, a federal ruling about fish in the Columbia River and a tunnel to replace the Alaskan Way Viaduct.”
Among supporters of the Freedom Foundation’s argument is Allied Daily Newspapers of Washington (The Columbian is a member). This association has long argued that state government officials have all the protection they need (actually more than they need) in 300-plus exemptions to the Public Records Act. Indeed, The Columbian and other newspapers have maintained that the public’s right to know would be respected and promoted if the exemptions list was dramatically reduced. Politicians often campaign on such a promise. Somehow, they don’t seem to turn that vow into action.
The Times also points out that Thurston County Superior Court Judge Carol Murphy has ruled that the governor has a qualified executive privilege, but whoever wants a document must demonstrate “a particularized need” for it. That’s backward thinking. The burden of proof must be on the government’s need for secrecy, not the people’s right to know.
And as the Times concluded, if the governor is to exert a qualified executive privilege, “the state auditor and the insurance commissioner, and the superintendent of public instruction will want it too,” and that’s one slippery slope down which wise Washingtonians don’t want this issue to slide.
One would think that Washington, the model state, is the last place where these types of arguments would arise. Yet last week the Court of Appeals ruled a $2,175 fine was appropriate after the governor’s staff improperly withheld a public document for 87 days.
The two aspirants to Gregoire’s job — Democrat Jay Inslee and Republican Rob McKenna — have campaigned in part on the importance of public access to public records. The Spokesman-Review in Spokane reports that Inslee and McKenna both have said they would not use executive privilege beyond the current exemptions to the Public Records Act. That’s encouraging, in a way, until one remembers there are far too many exemptions.
We hope the state Supreme Court rules in favor of the people’s right to know. To do so would emboss Washington’s stature as a exemplar in the open-government cause.