Yesterday the Washington Supreme Court recognized that the governor enjoys a qualified executive communications privilege.  In Freedom Foundation v. Gregoire, the Court held that executive privilege is necessary to facilitate candid advice to the governor and is therefore inherent in the state constitutional principle of separation of powers.  Thus, the executive privilege functions as a constitutional exemption from the disclosure requirements of Washington’s Public Records Act (PRA).  Drawing on the U.S. Supreme Court’s decision in United States v. Nixon (which required the production of secret audio recordings that precipitated President Nixon’s resignation), the Court ruled that the privilege is presumed upon invocation and can be overcome only by a showing particularized need to access withheld documents.

BACKGROUND

In response to a PRA request from the Freedom Foundation, a nonprofit political advocacy group, then Governor Christine Gregoire withheld certain documents, claiming executive privilege.  The governor produced a privilege log accompanied by a letter from her general counsel, identifying the authors, recipients, and the general subject matter of the withheld documents, and the Foundation brought suit to compel production under the PRA.  The trial court dismissed the Foundation’s suite, and the state supreme court granted direct review.

ANALYSIS

The Court ruled 8-1 that there is a qualified executive privilege rooted in the principle of separation of powers under the state constitution because of the governor’s need to receive candid policymaking advice uninfluenced by the prospect of disclosure and external criticism.

But only a bare majority could agree on the scope of the privilege and the proper allocation of burdens with respect to claims of privilege.  Writing for the five-justice majority, Justice Fairhurst explained as follows:

1. Executive privilege may be asserted over communications authored, solicited, or received by the governor or senior advisors for the purpose of informing executive policy choices and decision making.  “The privilege does not exist to shroud all conversations involving the governor in secrecy and place them beyond the reach of public scrutiny.”
2. Because it is for the courts to decide whether the privilege applies, the governor must provide to a reviewing court (in the event of a PRA suit) a privilege log, including a list of the withheld documents, their authors and recipients, and “a general description of the subject matter such that the court can evaluate the propriety of the governor’s claims.”  Critically, the provision of such a privilege log raises a presumption of privilege.
3. The party requesting disclosure may rebut the presumption of privilege by showing a particularized need for the requested materials.  Upon such a showing, the reviewing court must conduct an in camera review of the materials to determine whether the requesting party’s need outweighs the interests served by the privilege.

As the Foundation made no attempt to show a need, the Court affirmed dismissal of the Foundation’s suit.

As noted above, the majority disagreed as to the scope of the privilege and the showing required to defeat the claim of privilege.  Justice Charles Johnson (joined by Justice Stephens) argued in a concurring opinion that assertion of the privilege should not create a presumption that can be overcome only by a showing of particular need.  Rather, in his view, the burden should lie with the governor to establish the privilege through a process of automatic in camera review in the event of a PRA suit.  Chief Justice Madsen concurred separately, offering her view on the specific criteria that courts should consider in conducting such in camera review.

Justice James Johnson, in a lone dissent, argued that there is no principled basis to find an executive privilege rooted in the state constitution in light of the tradition of openness and transparency in state government, and he sharply criticized the majority for relying heavily on Nixon because of the differences between the office of the president and the governor.

COMMENTARY

Putting aside the controversy about recognition of a constitutionally rooted executive privilege, the majority’s opinion is striking for the points of disagreement over presumptions and burdens.  The concurring justices seem to have a point that the particularized need standard is virtually impossible to satisfy.  How can a requesting party establish a need to review a document with access only to statement of the general subject matter?

If we start from the premise that the claim of privilege is the exception to the general rule of openness – an issue that the majority did not appear to analyze – it makes both principled and practical sense to put the burden on the governor to establish the privilege.  The governor has access to the information and reasons justifying invocation of the privilege; the requesting party does not correspondingly have access to information to overcome the privilege.

But the rule favors the executive.  It remains to be seen to what extent the privilege will be invoked.  When it is, it will be up to courts to carefully scrutinize privilege logs and evaluate the reasons offered by requesting parties for gaining access to withheld materials.  If activities in the other Washington are any indicator, we likely have not seen the last of this issue.