Gregoire Claims Nonexistent Privilege to Block Public Records

Governor Christine Gregoire issues an executive order on climate change earlier this year. The Evergreen Freedom Foundation wanted to know the "backstory" for the order, and so they filed a public records request for documents related to the order's drafting and implementation.

Pretty straightforward.

Unfortunately -- for at least the second time -- Gregoire's office claimed the documents are protected under "deliberative process" and "executive privilege."

One problem is that "deliberative process" exemption is for protecting the process of forming policy, not after the policy has been formed (such as here, now that the order has been made and released by the Governor). The Court has held that "once the agency implements the policies or recommendations such records are no longer exempt under the deliberative process."

But even worse is that "executive privilege" simply does not exist in Washington public records law. It is a completely made-up notion by our governor, who is taking it upon herself to invent law as she goes along. As the EFF notes, a public records request may only be denied according to a specific statutory exemption, and none exists for "executive privilege."

The EFF has sent a letter asking for reconsideration.