The Washington Supreme Court adopted a “qualified gubernatorial communications privilege” and precluded production of former Governor Gregoire’s communications with her staff. Freedom Foundation v. Gregoire, 2013 WL 5652731 (Wash. Oct. 17, 2013). You may access the opinion here.
This decision comes just over a year after New Mexico adopted a similar chief executive communications privilege in Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep’t, 283 P.3d 853 (N.M. 2012). PoP profiled this decision in an earlier post.
Freedom Foundation sued Governor Gregoire to enforce a Public Records Act request seeking gubernatorial documents related to the Alaskan Way Viaduct, the Columbia River Biological Opinion, and proposed
medical marijuana legislation. The governor resisted production on grounds of executive privilege arising from the state constitutional Separation of Powers doctrine. As a matter of first impression, the Supreme Court had to decide “whether Washington’s constitutional separation of powers creates a qualified gubernatorial communications privilege that functions as an exemption to the Public Records Act.”
The Court held that, even though Washington’s constitution does not contain a formal separation of powers clause, the division of government into different branches gave rise “to a vital separation of powers doctrine.” Noting that every court considering the issues has adopted an evidentiary privilege for gubernatorial communications, the Washington Supreme Court similarly held that the state’s chief executive must have access to candid advice in order to explore policy alternatives and reach appropriate decisions without fear that her communications will later be revealed under an open government law.
The Court therefore adopted a “gubernatorial communications privilege.” The court held that this constitutional privilege applies only to communications authored or solicited and received by (1) the governor or (2) gubernatorial aides with “broad and significant responsibility for investigating and formulating the advice to be given to the governor.” The court did not define the scope of aides that enjoy the privilege, stating only that it applies to “senior policy advisors” but not to aides “unlikely to ever provide policy advice.”
The Court limited the gubernatorial communications privilege to its purpose—ensuring the governor’s access to frank advice in order to carry out her duties. The privilege therefore protects only communications made “for the purpose of fostering informed and sound gubernatorial deliberations, policymaking, and decisionmaking.”
In order to sustain the privilege, the governor must submit a privilege log identifying the putatively privileged documents, the author and recipient, and a general description of the subject matter. The trial court should consider the documents “presumptively privileged” if the governor provides this information in a sufficient manner.
The Washington court held that the gubernatorial communications privilege is qualified, meaning that a party seeking the communications may
overcome the privilege upon showing a “particularized need” for the materials. If the party proves a specific need, the trial court must then balance this need against the public’s interest in the governor receiving candid advice on policy decisions and determine whether to order production.
Washington now joins ten other states that recognize some form of a chief executive communications privilege (Alaska, California, Delaware, Kentucky, Maryland, New Jersey, New Mexico, Ohio, Virginia, and Vermont). Interestingly, the Freedom Foundation court diverged with New Mexico’s Republican Party decision on whether a party seeking gubernatorial communications through a public records request may overcome the privilege upon a sufficient showing of need. In Republican Party, the New Mexico Supreme Court held that, in the public records act context, the requester’s need is irrelevant, and once the governor proves the privilege there is no balancing test.
The Freedom Foundation dissent noted this issue, albeit in an argument to limit the privilege’s scope rather than on relevancy grounds. The balancing test becomes necessary only when a party seeks the governor’s communications in civil discovery because, in that situation, the party seeking the information has a need for the information or otherwise would not request it. In the public records request context, however, the requester’s need is irrelevant. Washington courts will need to address this issue in the future.