Guy v. Judicial Nominating Commission was a case before Delaware Superior Court in 1995 concerning executive privilege.
This case established that the doctrine of executive privilege exempted records created on behalf of the governor by advisory organizations relating to nomination powers under Delaware statute § 10002.g.6.
- Executive Order No. 3 established the Judicial Nominating Commission in 1993. The Commission is composed of nine members, eight appointed by the governor. The commission is tasked with finding "highly qualified candidates for judgeships to which the Governor is empowered to make appointments." The commission is also charged with maintaining all nomination and candidate material as confidential and subject to the discretionary release of the governor.
- Executive Order 10 of the same year modified the rules governing the commission to permit it to release records to the Delaware State Bar Association's Committee on Judicial Appointments .
- Samuel L. Guy requested to see the records and documents held by the commission and was denied. He filed suit seeking to compel disclosure under the Delaware Freedom of Information Act.
Ruling of the court
The Commission argued that it was not a public body, that the records were exempt under the common law executive privilege exemption and that the application of the FOIA law to the commission was a violation of the separation of powers.
The Delaware Superior Court found that the commission was a public body in that it was a commission appointed by a public official in order to make recommendations to the governor. However, the Supreme Court sided with the commission when ruling on the issue of Statute § 10002(d)(6) which exempts information based on common law. Relying heavily on the federal case law justifying the executive privilege exemption, the court found that the notion of separation of powers inherent in the constitution justified an exemption for executive privilege within the Delaware FOIA law. The court went on to establish that the process of investigating potential judicial candidates would be burdened and frank and honest information would be difficult to acquire if the information were not protected from public release. The court did limit this exemption to only executive appointments, stating, "This Court, therefore, recognizes as part of the constitutional and common law of the State the doctrine of executive privilege with respect to the source and substance of communications to and from the Governor in the exercise of his appointive power." However, this exemption must be weighed against other compelling interests. The court established that once a claim of executive privilege had been granted, the burden of proof for release fell on the requestor. In this case, the court ruled that due to a lack of substantive justification for release from Guy, the records were held exempt from disclosure.