¶49 (concurring) — I concur with the majority but write separately to express my concerns with the majority’s adoption of the three-part Nixon11 analysis. I agree with the majority that under our state constitution an executive communications privilege exists somewhat analogous to that under the federal constitution. It does not then follow, though, that we must adopt the federal approach applicable to the exercise of presidential executive privilege. Our commitment to open government, the differences between gubernatorial and presidential power, and the excessive burdens to compel disclosure under the federal analysis warrant a more realistic analysis. We should adopt an approach more reflective of the principles of state government and consistent with our established framework controlling analysis of exemptions under the Public Records Act (PRA), chapter 42.56 RCW.
¶50 Washington’s history illustrates a more robust commitment toward public disclosure than our federal government, and the PRA is the most forceful example of this commitment. Although we have previously noted that the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, is an appropriate comparison when discussing our own PRA, the two acts are by no means identical. See Hearst Corp. v. Hoppe, 90 Wn.2d 123, 129, 580 P.2d 246 (1978) (noting that the PRA is more severe than FOIA in several areas, such as the awarding of attorney fees). Just as the United States Supreme Court recognized that presidential *712executive privilege “must be considered in light of our historic commitment to the rule of law,” Nixon, 418 U.S. at 708, so must gubernatorial privilege be considered in light of our own state’s historic commitment to public disclosure and open government.
¶51 The office of governor is not equivalent to the office of the president of the United States, either in the scope of power or the ramifications that flow from disclosure of confidential information. The dissent wrongly concludes that because the governor is not pressed by the weighty concerns of national security, gubernatorial executive privilege does not exist. Dissent at 718. The scope of an executive’s power is irrelevant with regard to the existence of the executive privilege because executive privilege is derived from the structure of the state and federal constitutions. But the scope is quite relevant with regard to the degree of deference afforded that privilege. Our governor is not pressed with comparable decisions to those of the president, and the test for gubernatorial privilege should reflect this lesser need for confidentiality.
¶52 Finally, the Nixon analysis is contrary to common sense. By leaving the inquiry into whether the documents are protected by executive privilege until the final, third step, the requesting party may be forced to provide a particularized need for documents that may not even be privileged at all. In fact, this occurred, after lengthy and costly litigation, in Dann, a case that the majority cites approvingly but neglects to note the final outcome. State ex rel. Dann v. Taft, 110 Ohio St. 3d 252, 2006-Ohio-1825, 853 N.E.2d 263, 272 (holding that executive privilege did not apply to nearly all material requested under state PRA). The Nixon analysis’s grant of extreme deference to the executive’s assertion of executive privilege, and the heavy burden it places on the requestor by requiring a showing of particularized need even before the privilege is established, are simply not warranted at the state level.
¶53 The governor enjoys an executive communications privilege, but we are not bound to uncritically follow the *713lead of several of our sister states and the federal courts in adopting the Nixon analysis. A rule that better balances both the constitutional separation of powers and the obligations of an open government should be adopted. The PRA provides a helpful model on which to base a more narrowly tailored rule in the examination of executive privilege at the state level. While the PRA is statutory, it cannot bind our analysis of a constitutional privilege. But we should not be so quick to discard the experience our courts have acquired in reviewing PRA requests.
¶54 The approach should be that after the governor asserts an executive privilege and the requestor, in turn, files a claim for disclosure, the court reviews the documents in camera to determine whether the privilege applies. If the court finds that the executive privilege does not apply, the documents are released. Our courts are already familiar with the in camera review process mandated by the PRA to determine whether an exemption applies. RCW 42.56.550(3). While not advanced by the parties, the analysis for executive privilege should resemble our existing review process under the PRA. For example, in reviewing whether documents are exempt as a deliberative process under RCW 42.56.280, the court conducts an in camera review of the documents to determine whether the agency has met its burden of proving that the documents have met the four required criteria. Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 256, 884 P.2d 592 (1994) (PAWS). In camera review is, similarly, warranted to establish the judicially created PRA exemption for attorney work product. Soter v. Cowles Publ’g Co., 162 Wn.2d 716, 744, 174 P.3d 60 (2007). As under the PRA, under our approach to executive privilege, the burden would rest with the governor to establish an exemption (here, executive communications privilege) to the normal disclosure requirements. Cf. RCW 42.56.550(1) (placing the burden of proof on the agency to establish that refusal to permit public inspection). This analysis would not only be consistent with the spirit of the PRA but would also *714narrow the executive communications privilege. A narrow approach to this privilege is consistent with our existing cases. See PAWS, 125 Wn.2d at 251. Likewise, a narrow approach should look to limit the duration of a specific assertion of executive privilege, perhaps until the term of office ends or until the need for confidentiality abates.
¶55 The Nixon analysis is broader in scope and more deferential to the executive than any existing exemption under the PRA. Our former governor did not assert that she is exempt from the PRA, yet the majority’s adoption of the federal approach has the potential to functionally isolate the governor and the governor’s staff from the disclosure mandates of the PRA. If the governor, in fact, does seek such a broad and deferential executive communications privilege, that should be for the legislature to create, not this court.
¶56 In the present case, our former governor responded to Freedom Foundation’s PRA request by providing all but five documents and a partially redacted sixth. On these documents alone does she assert an executive communications privilege? Freedom Foundation should not be further required to provide a particularized need for documents whose content it cannot possibly determine unless the documents are disclosed. The lower court should review in camera whether the former governor has met her burden in establishing a communications privilege over these documents, and if she has not, the documents should be released in accord with our state’s commitment to transparency and open government.
Stephens, J., concurs with C. Johnson, J.United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974).