July 25, 2011
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Governor's Office invokes "executive privilege" in rejecting records request

christie_sm:
Gov. Chris Christie
cailes_sm:
Roger Ailes

NEWARK - The American Civil Liberties Union of New Jersey has sued New Jersey Governor Chris Christie's office on behalf of Gawker Entertainment and its reporter challenging the Governor's refusal - based on claims of executive privilege — to release correspondence between Fox News President Roger Ailes and Governor Christie.

"New Jersey needs a system in place to separate executive privilege from carte blanche," said Frank Corrado of Barry, Corrado, Grassi & Gibson, who is representing Cook for the ACLU-NJ and is the president of the organization's board. "Executive privilege exists to help a governor carry out constitutional obligations, not to diminish the constitutional right to a free press."

Gawker reporter John Cook filed a request for correspondence between the Governor and Ailes under the state Open Public Records Act (OPRA) on May 25, 2011. Cook sought any correspondence, phone records and calendar entries from Christie's office in order to shed light on conversations reported in New York magazine in which Ailes, a Republican political adviser turned Fox media mogul, urged Governor Christie to run for president. The Governor's office responded to the OPRA request on June 14, 2011, refusing to confirm whether the records existed, but said that if they did, they would be exempt from OPRA under executive privilege.

Executive privilege protects the Governor from disclosing records that contain advice to him on matters related to his executive functions as Governor of New Jersey. However, while New Jersey's executive privilege exists to protect "the sensitive decisional and consultative" responsibilities of the governor to fulfill his constitutional obligations, it does not apply to records that do not pertain to his constitutional obligations as the chief executive. Members of the press and the public alike need to know that the Governor only uses executive privilege to protect the integrity of his decisions and not to protect any and all correspondence he simply wishes to shield from scrutiny. The lawsuit seeks to ensure that Governor Christie has not improperly invoked the privilege.

"The public has a right to know whether the head of America's most-watched cable news channel is advising a sitting governor on State matters," said Gawker reporter Cook. "If the emails on the state system between the Governor and Ailes don't relate to Christie's functions as Governor, then they can't be hidden from the public."

The lawsuit, filed today in Superior Court in Mercer County, argues that the state's blanket assertion of executive privilege, without explanation or description of the documents, was insufficient to sustain the executive privilege claim.

The ACLU-NJ will argue that for executive privilege to be properly invoked the governor must include an index identifying the responsive records (without disclosing compromising details) and explain why executive privilege applies, or the records should be subject to a judge's in camera review.

The case is captioned Gawker Entertainment v. Jeffrey S. Chiesa .

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