PUBLIC INFORMATION -- Citizens for Responsibility and Ethics in Washington (CREW) reports that last Friday, in two separate CREW lawsuits, the U.S. District Court for D.C. ruled that the White House visitor records maintained by the Secret Service are not subject to the presidential communications privilege and must be disclosed.
In an earlier ruling U.S. Chief District Court Judge Royce C. Lamberth rejected the government's claim that the records were presidential and not subject to the Freedom of Information Act (FOIA). Once ordered to process CREW's requests, the Bush administration argued it could not even disclose whether it had responsive records because doing so would reveal information protected by the presidential communications privilege.
Judge Lamberth rejected this sweeping and unprecedented argument, finding that hiding the identities of those who visit the White House from the public undermines the FOIA's goal of fostering openness and accountability in government.
Compare that ruling with the California Supreme Court's decision, in Times Mirror Co. v. Superior Court (State of California), 53 Cal.3d 1325 (1991), that the "balancing test" in the California Public Records Act (Government Code §6255) enabled Governor George Deukmejian to withhold from the Los Angeles Times five years worth of his daily, weekly and monthly appointment calendars.
The Times asserts that, "in a democratic society, the public is entitled to know how [the Governor] performs his duties, including the identity of persons with whom he meets in the performance of his duties as Governor." Although the Times makes no effort to elaborate on this statement, its meaning is abundantly clear. In politics, access is power in its purest form. Entrance to the executive office is the passport to influence in the decisions of government. The public's interest extends not only to the individual they elect as Governor, but to the individuals their Governor selects as advisors.
One could readily imagine additional public benefits accruing from disclosure of the Governor's private itinerary, as well. It could be argued, for example, that the prospect of publicity would expand rather than contract the number and variety of persons meeting with the Governor. Disclosure might also reveal whether the Governor was, in fact, receiving a broad range of opinions, and ultimately whether the state's highest elected officer was attending diligently to the public business.
Moreover, in response to the assertion that disclosure could chill the flow of information to the executive office, one might argue, as the Court of Appeal concluded, that the Governor's advisors should be made of "sterner stuff"; we need not assume that the Governor, or those otherwise inclined to confer with the Governor, would be deterred by the mere specter of publicity.
The answer to these arguments is not that they lack substance, but pragmatism. The deliberative process privilege is grounded in the unromantic reality of politics; it rests on the understanding that if the public and the Governor were entitled to precisely the same information, neither would likely receive it. Politics is an ecumenical affair; it embraces persons and groups of every conceivable interest: public and private; popular and unpopular; Republican and Democratic and every partisan stripe in between; left, right and center. To disclose every private meeting or association of the Governor and expect the decisionmaking process to function effectively, is to deny human nature and contrary to common sense and experience.