NFOIC Joins Washington State Lawsuit Over Guv’s Claims of Executive Privilege

Good for the good ‘ol NFOIC….

The National Freedom of Information Coalition (NFOIC) has joined media associations and good government groups in asking the Washington state Supreme Court to limit Gov. Chris Gregoire’s authority to withhold documents from public scrutiny.

The case grew out of a lawsuit filed in April 2011 by the Olympia, Wash.-based Freedom Foundation, an NFOIC member organization in Washington state, over the governor’s claims of “executive privilege” as a basis for shielding records from disclosure.

At issue in the case are Gov. Gregoire’s claims of executive privilege to conceal records regarding a controversial, $2 billion proposed tunnel along the Seattle downtown waterfront to replace the elevated Alaskan Way Viaduct, in addition to other documents.

Other organizations supporting the Freedom Foundation’s position in amicus briefs filed in the lawsuit are Allied Daily Newspapers of Washington, the Washington Newspaper Publishers Association, the American Civil Liberties Union, the Institute for Justice and the Washington Coalition for Open Government (WCOG), also an NFOIC member organization.

The Freedom Foundation and its supporters say the governor should only be able to shield records from disclosure under the provisions of the state Public Records Act (PRA), which includes a “deliberative process” exemption. Gregoire’s attorneys say she is neither seeking to invalidate the PRA nor claim general immunity from it. They contend, however, that the constitutional separation-of-powers doctrine gives her additional authority to withhold documents in some instances.

Executive Privilege Challenge to be Heard by Washington Supreme Court

A growing menace, this state-level claiming of executive privilege:

Does the governor have the right to to shield documents from public view simply because she’s the governor? That’s a question the state Supreme Court late last month announced it would consider.

The case is brought by the Freedom Foundation, a libertarian think tank based in Olympia. The group is challenging Governor Chris Gregoire’s claim to an “executive privilege” that she says allows her to withhold documents from public disclosure. According to the foundation’s research, Gregoire claimed this privilege roughly 500 times between 2007 and 2010.

But there is no executive privilege spelled out in either the state Public Records Act, or the state constitution. So the foundation sued, citing a half-dozen examples of withheld documents.

Alan Copsey, the deputy solicitor general in the state Attorney General’s office, tells Seattle Weekly that the privilege “flows from the separation of powers.” He explains: “Each branch of government has a core function and in order to perform it property, it needs to have room to operate.” In the governor’s case, he continues, that means letting the state’s chief exec privately “consult with her advisers before making a decision.”

Freedom Foundation attorney Mike Reitz, however, says the documents withheld by Gregoire are not just communications between the governor and her advisers. He cites, for instance, a draft memorandum of agreement–along with Gregoire’s handwritten notes–between the state, King County, and city of Seattle over the viaduct replacement.

The question is, says Copsey, who were those handwritten notes for? He suggests that they may have been intended for the governor’s aides.

President Obama, Tear Down That Classification Scheme!

President George W. Bush and President-elect B...

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This just makes my head explode…from a timely and important op-ed in the New York Times:

A former top official in charge of ensuring that real secrets are kept secret has delivered a stunning repudiation of the Obama administration’s decision to use the Espionage Act against a whistle-blower attempting to expose government waste and abuse.

J. William Leonard, who directed the Information Security Oversight Office during the George W. Bush administration, filed a formal complaint about the prosecution with the Justice Department and the National Security Agency, and urged punishment of officials who needlessly classify documents that contain no actual secrets.

In the case in question, Thomas Drake, an N.S.A. employee, faced 35 years in prison for espionage after he leaked information to a reporter about a potential billion-dollar computer boondoggle. The case collapsed last month with Mr. Drake walking away after a token misdemeanor plea to providing information to an unauthorized person. The government was deservedly berated by Judge Richard Bennett of Federal District Court in Maryland for an “unconscionable” pursuit of the accused across “four years of hell.”

Prosecutors dropped the felony charges at the 11th hour after Judge Bennett ordered them to show allegedly classified material to the jury. But Mr. Leonard said he was willing to testify for Mr. Drake that there were no secrets at issue and that he had never seen “a more deliberate and willful example of government officials improperly classifying a document.”

The Obama administration has misguidedly used the Espionage Act in five such cases of news media disclosures; previously there were no more than four in all of White House history. This comes as officials classified nearly 77 million documents last year — a one-year jump of 40 percent. The government claim that this was because of improved reporting is not reassuring.

I voted for Obama last time. I will again. This is no secret to anyone who knows me, nor should it be much of a shock, given the alternatives. But it’s high time the access community got past the whole partisanship thing and started pummeling, really pummeling this President, who grows more secretive by the day.

Of course, maybe that is part of the problem: as the lone centrist in presidential politics these days, Obama knows he can repeatedly ignore the will of the openness community in quite a callow way, and the repercussions are nil. He pays no price from his base — much the way W paid no price for his secrecy, couching it in terms of executive power, which was quite the fashion of the day.

Still, we in the access community have a moral obligation to blast the administration for petty, vindictive, small-minded governing, not one iota less a duty than we had during the previous administration. I’m picking up a pen right now, and going to work…

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Gawker Sues for Records of Fox Chief’s Tutelage of New Jersey Guv

Gawker, the popular blog based in New York, is going to court to investigate the relationship between the Fox News chairman, Roger Ailes, and Gov. Chris Christie of New Jersey.

On Monday, the company and one of its reporters, John Cook, plan to file a civil suit against Mr. Christie’s office to try to obtain records of the communications between the two men. Mr. Cook, who regularly uses freedom of information and open public records acts to ferret out information for his Gawker articles, said the court action represents the first lawsuit filed by Gawker to obtain information.

The lawsuit has its origins in a New York magazine story in May which reported that Mr. Ailes had called Mr. Christie and “encouraged him to jump into the race” for president earlier this year. The report piqued the attention of people like Mr. Cook who believe that Mr. Ailes, a former Republican strategist who has run Fox News since its founding in 1996, still has a hand in politics. Mr. Christie has repeatedly ruled out running for president in the current election cycle.

In an interview with The Daily Beast weeks later, Mr. Ailes denied urging Mr. Christie to run, but acknowledged having dinner with him last summer.

By then, Mr. Cook had already sent a request to Mr. Christie’s office for any letters, logs of phone calls or records of meetings between Mr. Ailes and Mr. Christie. Mr. Cook asserted that that communications trail should be available under the state’s open public records act, but in mid-June, Mr. Christie’s office said that the records, if they exist, would be exempt upon “executive privilege and well-settled case law.”

Fair and Balanced: An FOI Story…

The current logo of Fox Television

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OK, so when you click on this link — fair warning — you get a SCARY huge picture of Fox chieftan Roger Ailes, beside a HUGE photo of NJ Guv Christie. That’s a lot of man, there….

Well, if you can make it past the pics (and that is a real challenge…), you get to enjoy a fascinating little tale: turns out that not only is Ailes advising Christie, the guv has declared Ailes a matter of executive privilege. Seriously. This is just a beautiful, beautiful story. A Fox exec serving as an adviser to a sitting governor…

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