310 P.3d 1252
Wash.2013Background
- Foundation sought production of 11 governor documents under PRA; governor asserted executive privilege; privilege log and general counsel letter issued; trial court held privilege is valid and granted governor summary judgment; on direct review, court affirms; issues centered on separation of powers creating a gubernatorial communications privilege and its scope; documents relate to Alaskan Way Viaduct, Columbia River Biological Opinion, and proposed medical marijuana legislation; PRA burden and in-camera review considerations raised; Foundation did not demonstrate particularized need to overcome presumption of privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Washington’s separation of powers create a gubernatorial executive communications privilege exempt from the PRA? | Foundation argues no constitutional privilege exists and PRA exemptions suffice. | Governor asserts a constitutional privilege to protect candid advice. | Yes, a qualified gubernatorial communications privilege exists as an exemption to the PRA. |
| Is the gubernatorial privilege properly applied to the challenged documents and governed by Nixon’s three-step framework? | Foundation contends Nixon framework or alternative should apply; no need shown. | Governor/privilege log presumptively privileged; need to overcome presumption with particularized need. | Privilege applies; presumption not overcome due to lack of demonstrated particularized need. |
| If privilege applies, what is the proper scope and procedure, including in-camera review, under Washington law? | Foundation should have access to documents; in-camera review not properly invoked. | In-camera review mirrors PRA process; governor bears burden to show exemption. | Court adopts a narrowed, PRA-like in-camera review framework for privilege, with logging and specific showing required. |
Key Cases Cited
- Nixon v. United States, 418 U.S. 683 (U.S. 1974) (establishes the three-step executive privilege framework)
- Republican Party of N.M. v. N.M. Taxation & Revenue Dep’t, 283 P.3d 853 (N.M. 2012) (recognizes gubernatorial privilege; adopts a more open-government-aligned approach)
- Dann v. Taft, 110 Ohio St.3d 252 (Ohio 2006) (deliberative/combined analyses; emphasizes balance and in-camera review limits)
- Guy v. Judicial Nominating Comm’n, 659 A.2d 777 (Del. Super. Ct. 1995) (recognizes executive privilege protections for gubernatorial communications)
- Hamilton v. Verdow, 414 A.2d 914 (Md. 1980) (recognizes governor’s need for candid advice to form policy)
- Nero v. Hyland, 386 A.2d 846 (N.J. 1978) (recognizes executive communications privilege protecting candid advice)
- Judicial Watch, Inc. v. Dep’t of Justice, 361 F.3d 1108 (D.C. Cir. 2004) (discusses scope of privilege and access considerations)