Judge's ruling weakensstate Public Records Act

Good luck to Thurston County Superior Court Judge Carol Murphy.

She'll need it to follow through on her interpretation of the state Constitution.

Earlier this month, Murphy ruled that Washington's governor can invoke executive privilege to justify withholding government documents from a public records request.

Determining that an executive privilege exists under the state Constitution is just the first step in a controversial case that looks alarmingly like an attempt to legislate from the bench.

The next step -- when Murphy presides over a hearing to determine whether Gov. Chris Gregoire has appropriately applied the privilege -- can only enhance the appearance of judicial activism.

Admittedly, that charge is far too freely leveled at court officials. Often, the term "activist judge" is code for "judge whose rulings run counter to my point of view."

But it's hard not to see how Murphy can continue on her current path without, in essence, writing law.

That's because neither the state Constitution nor state law mentions executive privilege.

Now that Murphy has ruled that it exists, she'll have to define the privilege before deciding whether Gregoire has overstepped her authority.

Alternatively, the appellate process might sidetrack the case. It's a good bet the issue of executive privilege will end up at the state Supreme Court.

Murphy's ruling stems from a lawsuit filed against Gregoire by The Freedom Foundation, a Libertarian think tank based in Olympia.

The foundation accused the governor of using executive privilege to shield documents, emails, memos to outside agencies and other public records it had requested under the state Public Records Act.

The documents at stake concern a variety of subjects, including the Alaskan Way Viaduct replacement options and medical marijuana legislation, The Associated Press reported.

The public's interest in the government's handling of those issues is self-evident.

The foundation's lawyers argued that executive privilege is not one of the 300-plus exemptions to Washington's Public Records Act.

Gregoire's office convinced the judge that executive privilege is implicit in the separation of powers doctrine, which limits legislative or judicial control over the executive branch of state government.

It's an important concept, but stretched too far in this case. Separation of powers doctrine doesn't exempt the governor from state law.

That said, it may be in the public's best interest for the governor to deny some requests for records. Experts may hedge their advice if they know it's subject to the Open Records Act. Companies considering a move to Washington might shy away if details can be disclosed to competitors.

But those are the sort of narrow exemptions that ought to be defined by the Legislature, not created by judicial fiat.