Governor may have executive privilege to keep calendar secret

MARYLAND–In early July, a state circuit court judge in Annapolis ruled that the governor’s appointment calendars and telephone records may be protected from disclosure under a claim of executive privilege.

Judge Lawrence Rushworth asked the governor’s office to turn over to the court the records it claims are privileged along with a memo asserting why disclosure would impinge upon the governor’s deliberative process. The court said it will then determine whether disclosure is in the best interest of the public.

Meanwhile, the court ordered the governor’s office to release to The Washington Post all the records it does not claim to be privileged.

The court acknowledged that generally documents containing confidential opinions, deliberations or recommendations are privileged, but purely factual data are not. However, the court rejected the fact/opinion dichotomy, finding that any executive privilege case turns on whether the executive will be unreasonably and adversely affected by disclosure.

Concerned that disclosure of all the records would have “a chilling affect [sic] on the Governor’s ability to carry-out his Constitutional duties,” the court decided to allow the governor’s office to attempt to prove that disclosure would impinge on the deliberative process.

“If the Governor is forced to disclose every meeting and telephone call that he makes it may adversely affect the Governor’s ability to freely solicit a multitude of views and opinions on various policy issues,” the court wrote.

The lawsuit arose after the parties were unable to come to an agreement on the disclosure of the records. The newspaper sought the records “because experience teaches that such records serve as a valuable means to understanding and evaluating the performance of public officials and agencies.” (The Washington Post v. The Office of the Governor; Media Counsel: Karen Kramer, Washington, D.C.)