§14.5 OTHER PRIVILEGE EXEMPTIONS
Additional privilege exemptions are discussed below.
(1) Constitutional privileges, including executive privilege
Relying on the "separation of powers" in the Washington Constitution, the Washington Supreme Court has held that a qualified gubernatorial communications privilege is an exemption to the PRA. Freedom Found. v. Gregoire, 178 Wn.2d 686, 310 P.3d 1252 (2013). Governor Gregoire asserted this privilege over documents that involved the negotiations to replace the Alaskan Way Viaduct in Seattle, the Columbia River Biological Opinion, and proposed medical marijuana legislation. These documents were exempt from disclosure under Governor Gregoire's executive privilege, the Supreme Court held, reasoning that executive privilege plays a critical part in preserving the integrity of the executive branch, and refusal to recognize the gubernatorial privilege would subvert the integrity of the governor's decision-making process, damage the functionality of the executive branch, and transgress the boundaries set by the separation of powers doctrine.
| Note: | Washington's constitution does not contain a formal separation of powers clause, but divides state government into different branches, giving rise to a "'vital separation of powers doctrine.'" Brown v. Owen, 165 Wn.2d 706 718, 206 P.3d 310 (2009) (quoting Carrick v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994)). The Supreme Court test for separation of powers violations is determining "'whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another."' Id. |
For the executive privilege to apply, three criteria must be met.
[First], the constitutional communications privilege applies only to communications "authored" or "solicited and received" by the governor or aides with "broad and significant responsibility for investigating and formulating the advice to be given" to the governor.
Second, the communication must occur "for the purpose of fostering informed and sound gubernatorial deliberations, policymaking, and decision making."
Finally, the governor must provide a record that allows the trial court to determine the propriety of any assertion of the privilege.
Freedom Found., 178 Wn.2d at 703 (citations omitted).
Unlike other claims of privilege under the PRA, reviewing courts will not require in camera inspection of a document, but apply a presumption that the document is privileged if so claimed by...
