Wash. high court approves governor secrecy

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Associated Press

Posted on October 17, 2013 at 1:03 PM

Updated Thursday, Oct 17 at 1:04 PM

SEATTLE (AP) — Washington state's governor is allowed to claim "executive privilege" as a reason to withhold documents from the public even though that exemption isn't among the hundreds listed in state law, the state Supreme Court ruled Thursday.

In an 8-1 decision, justices said the governor's office has an inherent privilege as a result of the constitutional separation of powers.

"The executive communications privilege plays a critical part in preserving the integrity of the executive branch," wrote Justice Mary Fairhurst in the majority opinion. "Courts have widely recognized that the chief executive must have access to candid advice in order to explore policy alternatives and reach appropriate decisions."

Justices did provide some qualifications in their decision, saying the privilege only applies to communications made to inform policy choices. They also said a person requesting public records can argue that the need for the material outweighs the public interests served by protecting the communication.

"The privilege does not exist to shroud all conversations involving the governor in secrecy and place them beyond the reach of public scrutiny," Fairhurst wrote.

In the only dissenting opinion, Justice James Johnson said the majority ruling essentially amended the state constitution and a voter-approved initiative that established public disclosure law decades ago.

"The majority ignores our state's constitution, statutes, and populist tradition and does great damage to over 120 years of open government in Washington," Johnson wrote. "It is not alarmist to say that this decision could place a shroud of secrecy over much government conduct, unless changed by a wiser court, electorate, or legislature."

Johnson said he agreed that the governor must have access to candid advice but notes that state law already has protections for things like preliminary drafts, notes and recommendations in which opinions are expressed or policies are formulated.

Johnson also disputed that the governor's office would need as much secrecy as the president of the United States, which deals with issues such as war and national security. And he said concerned citizens will now have to bring difficult and expensive lawsuits in order to get a closer look at the state government.

"This ruling likely will not destroy our democracy, but it will affect its legitimacy in the eyes of the citizens of this state which is a start in that direction," Johnson wrote.

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Follow AP Writer Mike Baker on Twitter: https://twitter.com/MikeBakerAP

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