Freedom Found., Nonprofit Corp. v. Gregoire, No. 86384–9.

CourtUnited States State Supreme Court of Washington
Writing for the CourtFAIRHURST
Citation178 Wash.2d 686,310 P.3d 1252
PartiesFREEDOM FOUNDATION, a Washington nonprofit corporation, Appellant, v. Christine O. GREGOIRE, in her official capacity as governor of the state of Washington, Respondent.
Decision Date17 October 2013
Docket NumberNo. 86384–9.

178 Wash.2d 686
310 P.3d 1252

FREEDOM FOUNDATION, a Washington nonprofit corporation, Appellant,
v.
Christine O. GREGOIRE, in her official capacity as governor of the state of Washington, Respondent.

No. 86384–9.

Supreme Court of Washington,
En Banc.

Oct. 17, 2013.


[310 P.3d 1255]


Michael J. Reitz, Attorney at Law, Midland, MI, Michele Lynn Earl–Hubbard, Allied Law Group LLC, Seattle, WA, for Appellants.

Alan D. Copsey, Office of the Attorney General, Olympia, WA, for Respondent.


Katherine George, Harrison–Benis LLP, Seattle, WA, for Amicus Curiae on behalf of Allied Daily Newspapers of Washington, Amicus Curiae on behalf of Washington Newspapers Publishers Association, Amicus Curiae on behalf of National Freedom of Information COAlition, Amicus Curiae on behalf of Washington COAlition for Open Government.

Sarah A. Dunne, ACLU of Washington Foundation, Seattle, WA, Nancy Lynn Talner, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of Aclu.

William R. Maurer, Institute for Justice/WA State Chapter, Bellevue, WA, for Amicus Curiae on behalf of Institute for Justice Washington Chapter.

[310 P.3d 1256]



FAIRHURST, J.

[178 Wash.2d 691]¶ 1 We must decide whether Washington's constitutional separation of powers creates a qualified gubernatorial communications privilege that functions as an exemption to the Public Records Act (PRA), chapter 42.56 RCW. Freedom Foundation (Foundation) sued the governor to compel production of documents under the PRA after the governor asserted executive privilege and refused to release them. The parties filed cross motions for summary judgment. The trial court resolved these motions by ruling that separation of powers principles produce a qualified gubernatorial communications privilege. Because the Foundation made no attempt to overcome this qualified privilege, the trial court granted the governor summary judgment. Finding no error, we affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 2 This case began when Scott St. Clair, a Foundation employee, e-mailed the office of the governor and made a public records request for 11 specific documents. St. Clair knew the governor had claimed executive privilege and refused to produce these documents in response to other public records requests.

¶ 3 The governor's staff re-reviewed each document to see if the governor could now waive the privilege without harm. The governor waived the privilege for five documents and part of a sixth document. She continued to claim privilege for part of the sixth document and five other documents. The withheld documents involved the negotiations to replace the Alaskan Way Viaduct in Seattle, the Columbia River Biological Opinion, and proposed medical marijuana legislation. With the produced documents, the governor included a privilege log and a letter from the governor's general counsel. The privilege log and letter identified the withheld documents, their authors and recipients, their subject matter in general terms, and explained[178 Wash.2d 692]that the governor was asserting executive privilege to protect her access to the candid advice needed to fulfill her constitutional duties.

¶ 4 Dissatisfied, the Foundation filed suit in Thurston County Superior Court to compel production of the documents under the PRA. Both sides sought summary judgment.

¶ 5 The governor asked the trial court to follow decisions from federal and other state courts and recognize an executive communications privilege deriving from the separation of powers implied in the Washington State Constitution. The governor asked the trial court to analyze the privilege claim using the three-step framework created by the United States Supreme Court in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). In Nixon's first step, the governor or the governor's representative creates the presumption that a document is privileged by stating that he or she has reviewed the document and “determined that it falls within the privilege, because it is a communication to or from the Governor that was made to foster informed and sound gubernatorial deliberations, policymaking, or decision-making; and that production of the document would interfere with that function.” Clerk's Papers (CP) at 237; Nixon, 418 U.S. at 713, 94 S.Ct. 3090.Nixon's second step requires the party requesting the production of documents to overcome the presumption of privilege by “demonstrating a particularized need for the documents and identifying an interest that could outweigh the public interests and constitutional interests served by executive privilege.” CP at 237; Nixon 418 U.S. at 713, 94 S.Ct. 3090. If the party makes a sufficient showing, Nixon's third step requires the trial court to examine the documents in camera and balance the constitutional and public interests served by the privilege against the demonstrated need for the documents. See418 U.S. at 714–15, 94 S.Ct. 3090. If the need outweighs the interests served by the privilege, the trial court must order the release of the documents. The governor stressed that under Nixon, to [178 Wash.2d 693]compel production, the Foundation had to demonstrate some specific, individualized need, which the Foundation had not demonstrated.

¶ 6 The Foundation maintained that Washington's spirit of open government prevented recognition of an implied executive privilege.

[310 P.3d 1257]

The Foundation argued that even if the trial court recognized an executive privilege, the trial court should refuse to apply the privilege to the PRA for two reasons. First, RCW 42.56.070(1) allows only specified statutory exemptions to the PRA's disclosure requirements and an implied constitutional privilege would not satisfy this requirement. Second, the Nixon test clashes with procedural provisions of the PRA, especially the provisions related to who has the burden to justify nondisclosure and the availability of in camera review. Based on its view of the primacy of the PRA, the Foundation refused to provide an alternative to the Nixon test to evaluate privilege claims within the context of the PRA and refused to show any need for the documents.

¶ 7 Based on separation of powers considerations, the trial court recognized an executive communications privilege. Given the Foundation's failure to provide an alternative to the Nixon test, the trial court applied the Nixon test. The trial court determined that the general counsel's letter to St. Clair had created a presumption of privilege, satisfying Nixon's first step. The trial court ruled that the Foundation had demonstrated neither a showing of particularized need nor an interest in obtaining the documents that outweighed the public and constitutional interests served by the privilege. The trial court also ruled that RCW 42.56.070(1) incorporated constitutional privileges as an exemption to the production of documents. Further, the trial court determined that if the PRA required a specific statutory citation for executive privilege, RCW 43.06.010[178 Wash.2d 694]provided such a citation. 1 The trial court rejected the Foundation's request to order production of the documents and granted the governor's motion for summary judgment.

¶ 8 The Foundation sought direct review, which we granted.

II. STANDARD OF REVIEW

¶ 9 We review a trial court's grant of summary judgment de novo, performing the same inquiry as the trial court. Neighborhood Alliance v. Spokane County, 172 Wash.2d 702, 715, 261 P.3d 119 (2011). Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Wash. Imaging Servs., LLC v. Wash. State Dep't of Revenue, 171 Wash.2d 548, 555, 252 P.3d 885 (2011). The parties agree that no material issue of fact exists here.

III. ISSUES PRESENTED

¶ 10 (1) Does Washington's separation of powers doctrine give rise to an executive communications privilege that serves as an exemption to the PRA?

¶ 11 (2) Did the trial court properly determine that the executive communications privilege covered the documents at issue?

IV. ANALYSIS
A. The PRA

¶ 12 Initially passed as a citizen's initiative in 1972, the PRA serves to ensure governmental transparency in Washington State. O'Neill v. City of Shoreline, 170 Wash.2d 138, 146, 240 P.3d 1149 (2010). The PRA embodies “a [178 Wash.2d 695]strongly worded mandate for broad disclosure of public records.” Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978). To effectuate this mandate, the PRA directs each agency to allow public access to “all public records, unless the record falls within the specific exemptions of subsection (6) of this section, this chapter, or other statute which exempts or prohibits disclosure of specific information or records.” RCW 42.56.070(1) (reviser's note omitted). Under the PRA, the agency bears the burden of showing that records fall within a statutorily specified exemption. Neighborhood Alliance, 172 Wash.2d at 715, 261 P.3d 119. To preserve the PRA's broad mandate for disclosure, this court construes its provisions liberally and its exemptions narrowly. Bainbridge Island Police Guild v. City of Puyallup, 172 Wash.2d 398, 408, 259 P.3d 190 (2011).

[310 P.3d 1258]

¶ 13 The Foundation maintains that RCW 42.56.070(1) requires the governor to produce the documents it seeks, stressing that neither the PRA nor any other statute recognizes an executive communications privilege.

¶ 14 The Foundation's reading of RCW 42.56.070(1) fails to recognize that the governor raises a constitutional privilege. We have recognized that the PRA must give way to constitutional mandates. See Seattle Times Co. v. Serko, 170 Wash.2d 581, 594–97, 243 P.3d 919 (2010) (discussing how constitutional fair trial rights may serve as an exemption under the PRA); Yakima County v. Yakima Herald–Republic, 170 Wash.2d 775, 808, 246 P.3d 768 (2011) (noting in dictum that the argument that constitutional provisions can serve as PRA exemptions “has force”)....

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23 practice notes
  • Chelan Basin Conservancy v. GBI Holding Co., No. 93381-2
    • United States
    • United States State Supreme Court of Washington
    • March 15, 2018
    ...[ ] an exercise of the legislative power above the constitution, which is anathema to our system of law." Freedom Found. v. Gregoire, 178 Wash.2d 686, 706, 310 P.3d 1252 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L.Ed. 60 (1803) ). While we have at times described the SMA as ......
  • Conservancy v. Gbi Holding Co., No. 93381-2
    • United States
    • United States State Supreme Court of Washington
    • July 6, 2017
    ...of the legislative power above the constitution, which is anathema to our system of law." Freedom Found. v. Gregoire, 178 Wn.2d 686, 706, 310 P.3d 1252 (2013) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 S.Ct. 60 (1803)). While we have at times described the SMA as embodying th......
  • Wash. Pub. Emps. Ass'n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss, NO. 95262-1
    • United States
    • United States State Supreme Court of Washington
    • October 24, 2019
    ...5 of the Washington State Constitution. It is true that "the PRA must give way to constitutional mandates." Freedom Found., v. Gregoire, 178 Wash.2d 686, 695, 310 P.3d 1252 (2013) (recognizing limited executive communication privilege that operates as a PRA exemption based on separation of ......
  • Associated Press v. Washington State Legislature, No. 95441-1
    • United States
    • United States State Supreme Court of Washington
    • December 19, 2019
    ...Defendants in effect posit. See Bainbridge Island Police Guild, 172 Wash.2d at 408, 259 P.3d 190 ; Freedom Found. v. Gregoire, 178 Wash.2d 686, 695, 310 P.3d 1252 (2013) ("To preserve the PRA’s broad mandate for disclosure, [we] construe[ ] its provisions liberally and its exemptions narrow......
  • Request a trial to view additional results
22 cases
  • Chelan Basin Conservancy v. GBI Holding Co., No. 93381-2
    • United States
    • United States State Supreme Court of Washington
    • March 15, 2018
    ...[ ] an exercise of the legislative power above the constitution, which is anathema to our system of law." Freedom Found. v. Gregoire, 178 Wash.2d 686, 706, 310 P.3d 1252 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L.Ed. 60 (1803) ). While we have at times described the SMA as ......
  • Conservancy v. Gbi Holding Co., No. 93381-2
    • United States
    • United States State Supreme Court of Washington
    • July 6, 2017
    ...of the legislative power above the constitution, which is anathema to our system of law." Freedom Found. v. Gregoire, 178 Wn.2d 686, 706, 310 P.3d 1252 (2013) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 S.Ct. 60 (1803)). While we have at times described the SMA as embodying th......
  • Wash. Pub. Emps. Ass'n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss, NO. 95262-1
    • United States
    • United States State Supreme Court of Washington
    • October 24, 2019
    ...5 of the Washington State Constitution. It is true that "the PRA must give way to constitutional mandates." Freedom Found., v. Gregoire, 178 Wash.2d 686, 695, 310 P.3d 1252 (2013) (recognizing limited executive communication privilege that operates as a PRA exemption based on separation of ......
  • Associated Press v. Washington State Legislature, No. 95441-1
    • United States
    • United States State Supreme Court of Washington
    • December 19, 2019
    ...Defendants in effect posit. See Bainbridge Island Police Guild, 172 Wash.2d at 408, 259 P.3d 190 ; Freedom Found. v. Gregoire, 178 Wash.2d 686, 695, 310 P.3d 1252 (2013) ("To preserve the PRA’s broad mandate for disclosure, [we] construe[ ] its provisions liberally and its exemptions narrow......
  • Request a trial to view additional results

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