Executive Privilege under Washington's Separation of Powers Doctrine
Marchisio, Lee, Washington Law Review
Abstract: Since United States v. Nixon, the U.S. Supreme Court has recognized a qualified executive privilege grounded in federal separation of powers. The privilege allows the President to withhold executive branch communications when disclosure would undermine presidential decisionmaking while executing core constitutional duties. Several states have followed the Supreme Court's lead and adopted an analogous gubernatorial privilege under state constitutional separation of powers. Focusing on Washington State's well-developed separation of powers doctrine and strong populist history, this Comment argues that the Washington State Supreme Court should recognize a qualified gubernatorial privilege that also respects the state's long history of citizen oversight.
The spirit of reciprocity and interdependence requires that if checks by one branch undermine the operation of another branch or undermine the rule of law which all branches are committed to maintain, those checks are improper and destructive exercises of the authority1
The separation of powers doctrine is deeply rooted in Washington jurisprudence.2 It protects each branch of government from encroachment into its core sphere of competence, guarding against burdensome checks on its power by the other branches.3 Nevertheless, the Washington State Supreme Court has so far avoided determining the extent to which the executive branch may shield its internal decisionmaking processes from a judicial order to disclose records for criminal proceedings, civil litigation, or public records requests.4
In United States v. Nixon,5 the U.S. Supreme Court held that the President has a qualified privilege to withhold executive communications.6 The privilege presumptively applies whenever the President formally asserts it in response to a specific request for information.7 A requestor must then demonstrate a particularized need for the communications at issue.8 If the requestor can demonstrate sufficient need, then a court will review the communications in camera and engage in a balancing test to determine whether the requestor's particular need outweighs the public interest in maintaining the integrity of the President's decisionmaking process.9 In Nixon, the Court held that the need for evidence in a criminal proceeding was sufficient to compel in camera inspection and the subsequent release of admissible and relevant recorded conversations between the President and his advisors.10
After Nixon, states have recognized varying degrees of analogous gubernatorial privilege grounded in common law" or state constitutional separation of powers.12 Some states provide a deliberative process exemption13 that protects communications only insofar as they pertain to pre-decisional opinions.14 Under this exemption, factual material divorced from advisor opinion is generally not protected.15 Furthermore, once the governor makes a final decision on the relevant issue, the deliberative process exemption ceases to protect even advisor opinions.16 Other states apply a more robust executive privilege doctrine closely analogous to that applied in Nixon, which exempts both pre- and postdecisional gubernatorial communications. These states protect both fact statements and advisor opinions from compelled disclosure.17 They also protect documents even after a final decision has been made.18
The Washington Public Records Act (PRA)19 guarantees citizen access to public records of state and local governmental bodies, including the governor's office as a state agency.20 The PRA includes a deliberative process exemption, 1 which the Washington State Supreme Court strictly limits to pre-decisional opinions.22 The Court refuses to protect communicated opinions once a final decision has been reached.23 Furthermore, courts reviewing disclosure requests start with a strong presumption in favor of disclosure and apply the statutory exemption narrowly.24 This framework is consistent with Washington's populist constitutional history. …