On Wednesday, the Freedom Foundation filed an appeal with Washington State’s Supreme Court challenging a lower court ruling in its case against the governor for her withholding of some documents requested under the Washington State’s Public Records Act.
Though Gov. Christine Gregoire won an initial victory in her fight to establish executive privilege as a legal reason for withholding information, the matter of protecting public access to important public documents is still being battled by the group that brought suit against the governor earlier this year.
Freedom Foundation general counsel Mike Reitz told NW Daily Marker that the possibility exists for the Supreme Court to set a precedent for executive privilege that could be liberally applied by whoever holds the governor’s office in the future, but he sees that as a stark departure from how the courts have previously ruled on conflict between an executive’s right to privacy and the public’s right to know.
“If they ruled in favor of the governor, that would be a game-changer,” Reitz said. “That would be the first time an appeals court in Washington has recognized executive privilege and that’s going all the back through 120 years of statehood.”
Freedom Foundation v. Gregoire was filed in April to challenge Gregoire’s right to withhold documents pursuant to a number of requests for information pertaining to her office’s involvement in the Alaskan Way Viaduct replacement, deliberations on medical marijuana legislation, and other high profile issues affecting public policy. Gregoire has claimed executive privilege as the basis for withholding the documents and has insisted that constitutional theory affords her the prerogative; the Freedom Foundation argued in its case that no such right exists in the state’s public records law.
In the first set of decisions in the case, Thurston County Superior Court Judge Carol Murphy sided with the governor’s position, and by doing so may have created the right of executive privilege for future governors. Freedom Foundation’s appeal seeks to avert the larger implication of allowing the lower court’s decision to stand, what it believes would be a government free to operate without fear of public accountability.
The Freedom Foundation coordinated the filing of its appeal with a money bomb fundraising campaign on its website and through social media. During a live broadcast on the group’s Facebook page, general counsel Mike Reitz stated that the merits of the Freedom Foundation’s position are strong and he wants to hire on additional legal muscle to ensure the best chance of a successful appeal.