Doe v. Superior Court

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Doevs.Superior Court
Number: S-859, 721 P.2d 617, 620
Year: 1986
State: Alaska
Court: Alaska Supreme Court
Other lawsuits in Alaska
Other lawsuits in 1986
Precedents include:
1.) This case established the deliberative process exemption and executive privilege as implicit in the Alaskan constitution based on the separation of powers.
2.) This case also established that by exercising one's right to petition the government, an individual forgoes any right to privacy with regard to that position.
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Deliberative Process Exemption

Doe v. Superior Court was a case before the Alaska Supreme Court in 1986 concerning open records and the deliberative process exemption.

Important precedents

This case established a number of key precedents for Alaskan law:
1.) This case established the deliberative process exemption and executive privilege as implicit in the Alaskan constitution based on the separation of powers.
2.) This case also established that by exercising one's right to petition the government, an individual forgoes any right to privacy with regard to that position.


  • In 1981, the office of the governor began compiling a file on Dr. Carolyn Brown, a potential appointee to the state medical board. Brown was eventually appointed to the board. The governor signed a letter appointing her, but did not mail it, and had his press secretaryy announce her appointment.
  • The non-profit, Alaska Right-to-Life, Inc., immediatly began to criticize the appointment and the governors office because of Brown's history as an abortion provider, and her alleged brutal practices within that profession. The governor's office was inundated with complaints.
  • The governor immediately revoked the appointment, claiming that he had not approved the appointment when the announcement came to the press and that he had instead chosen to select someone recommended by the State Medical Board.
  • Borwn and other doctors highlighted by Alaska Right-to-Life, Inc.'s publications sued for defamation of character.
  • During the case, Brown attempted to gain access to the file the Governor's office had created in order to consider her appointment. The file included not only a great deal of intra-office memoranda but also letters from a number of citizens to the governor which either advocated or criticized the appointment of Brown.
  • The court, in response to Browns request, ordered the entire file, including the letters to be released in their entirety after an in camera review of the documents. However, the court stipulated that names and personal identifiers should be removed.
  • In 1985, Moffatt, an associate of Browns who filed suit with brown, requested that all of the letters be released in their entirety.
  • John Doe, an individual who had submitted one of the letters in question, filed a lawsuit seeking to prevent the release of the names on behalf of himself and all others affected by the release. Doe, along with the Governor and Alaska Right-to-Life, Inc., argue that the release of the documents violates privacy protections within the Alaska Public Records Act and the state Constitution as well as the doctrine of executive privilege.
  • The Supreme Court accepted the case to determine whether the governor's file is subject to the trial courts order to produce it.[1]

Ruling of the court

The Supreme court delivered a split decision ordering the letters released and the remaining documents potentially exempt based on in camera review.

The Supreme Court first determined that the material was absolutely relevant to the case at hand, as it provided a link between the publications of Alaska Right-to-Life, Inc. and the governor's decision to remove the appointment. However, the court determined that relevancy alone did not function as an adquate reason for disclosure.

Deliberative process exemption and executive privilege

The court went on to consider the argument that all of the documents fell under the executive privilege exemption, implicit in Alaska's constitution. While the Alaskan Supreme Court had not ruled on this privilege, it cited a number of other state courts who had established the privilege, including the Maryland Court of Appeals (Hamilton v. Verdow), the New Jersey Supreme Court (Nero v. Hyland), and the New Mexico Supreme Court (State, ex rel. Attorney General v. First Judicial District Court). The court found that these and other cases, "consistently hold that the privilege is only a qualified one, is applicable to internal advice, opinions and recommendations, and is intended to protect the deliberative and mental processes of decision-makers"[1]. The court determined that these criteria applied to only the solicited inter-office communications and not the unsolicited letters from concerned citizens as the privilege is only designed to protect communication within the office of the governor. The court thus ruled that the interoffice memoranda within the document could be exempt from requests based on the deliberative process exemption found within the executive privilege that the court established for Alaska in this case. The court however remanded the decision as to which specific documents were to be exempted to the trial court, ordering an in camera review of the documents to determine if they contained deliberative content such as opinions or advice.

The letters to the governor

The court ruled that the letters and the accompanying names were to be released. It felt that the act of submitting a letter to the governor was in itself a public act, thus waving any right to privacy or secrecy. The court also determined that the Alaska constitution, like the federal constitution, could not be construed so as to grant immunity to all petitioners. The court argued that the statement, "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right" which protects the right to petition in the Alaskan constitution also asserts that those who petition must be subject to the consequences of those petitions[1]. Thus the court ordered the release of the letters written to the governor complete with the names of the letter writers.

Associated cases

See also

External links


  1. 1.0 1.1 1.2 Ruling of the Court