¶57 (dissenting) — Today the majority amends our constitution and laws (Initiative 276) to grant a former governor power to hide from the citizens office records relating to major (and often expensive) deals made *715by the governor. The current and recently elected governor does not support or advocate this protection, but the “majority” marches on, with neither constitutional nor legal support — save one case involving the discovery of the files of Richard Nixon, when impeached as United States president.
¶58 It was once wisely observed that “[a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” Letter from James Madison to W.T. Barry (Aug. 4,1822), in 9 The Writings of James Madison 103 (1910).
¶59 The majority ignores our state’s constitution, statutes, and populist tradition and does great damage to over 120 years of open government in Washington, as enforced by Initiative 276, as well as to the limits our constitutional framers intentionally placed on executive power. 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.
¶60 Our constitution does not mandate nor does it allow this result. Unlike the United States president, commander in chief of the nation’s military, Washington’s governor does not need the immense power of a gubernatorial communications privilege in order to maintain the proper balance between the branches required by the separation of powers doctrine or to protect his or her decisions from the public eye. Washington State has no stealth bombers, nuclear weapons, or immediate plans for war. Accordingly, I dissent.
*716Analysis
I. This Court Does Not Need To Create a Gubernatorial Communications Privilege in Order To Afford the Executive Branch Limited Protection Required by Separation of Powers
a. Separation of Powers
¶61 Our constitution does not contain a formal separation of powers clause. However, this court has recognized that the division of our state government into different branches gives rise to a “ ‘vital separation of powers doctrine.’ ” Brown v. Owen, 165 Wn.2d 706, 718, 206 P.3d 310 (2009) (quoting Carrick v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994)). We test for separation of powers violations by determining “ ‘whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another.’ ” Id. (internal quotation marks omitted) (quoting Carrick, 125 Wn.2d at 135). The “ ‘fundamental functions of each branch [must] remain inviolate.’ ” Id. (quoting Carrick, 125 Wn.2d at 135).
¶62 For example, we will not overturn the president of the senate’s ruling on a point of order or compel the president of the senate to forward a bill to the house because to do so would impermissibly interfere with one of the legislature’s fundamental functions. Id. at 719-22. For the same reason, the legislature may not adopt procedural rules that conflict with our court rules. E.g., Putman v. Wenatchee Valley Med. Ctr., 166 Wn.2d 974, 984-85, 216 P.3d 374 (2009). Similarly, we will not review a governor’s decision to call a special session of the legislature because that decision is “the exclusive province of the governor, under the constitution.” State v. Fair, 35 Wash. 127, 131, 76 P. 731 (1904).
¶63 That said, the three branches are not “hermetically sealed off from one another.” Carrick, 125 Wn.2d at 135. In *717fact, “[o]ur system of government allows each branch to exercise some control over the others . . . Brown, 165 Wn.2d at 720. “The different branches must remain partially intertwined if for no other reason than to maintain an effective system of checks and balances, as well as an effective government.” Carrick, 125 Wn.2d at 135 (citing In re Juvenile Dir., 87 Wn.2d 232, 239-40, 552 P.2d 163 (1976)). Like the framers of the United States Constitution, our framers were concerned with creating a government that is “both effective and accountable.” Loving v. United States, 517 U.S. 748, 757, 116 S. Ct. 1737, 135 L. Ed. 2d 36 (1996). As I will further explain below, the Public Records Act (PRA), chapter 42.56 RCW, serves as a tool of accountability that does not intrude on the fundamental functions of the executive found in our state constitution. Through amendments 8 and 9 of the state constitution, the people (voters) took power to make or void law and remove elected officials, all without the governor having any role.
b. Candid Advice
¶64 I agree with the majority that sometimes the governor “must have access to candid advice in order to explore policy alternatives and reach appropriate decisions.” Majority at 696.1 vehemently disagree, however, with the majority’s conclusory assertion that our governor must enjoy the same privilege as the president of the United States in order to receive that advice.12 It is possible to analogize between the two offices in the sense that both are the head of their respective executive branches, but when comparing their individual responsibilities, it becomes increasingly difficult to justify the adoption of such a powerful privilege at the state level. The governor does not need as much decisional “elbow room” as the president.
*718¶65 The president is granted exceptional powers and responsibilities in article II of the United States Constitution. The main case on which the majority relies, United States v. Nixon, directly acknowledged that the privilege afforded the president owed itself to “the singularly unique role under Art. II of a President’s communications and activities, related to the performance of duties under that Article.” 418 U.S. 683, 715, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974); see also In re Sealed Case, 326 U.S. App. D.C. 276, 121 F.3d 729, 749 (1997) (noting that the president occupies a truly unique position in the separation of powers analysis). Sure, the governor has some dealings with other governments and is the nominal commander in chief of the state National Guard, but those responsibilities are wholly different from overseeing the Central Intelligence Agency (CIA), conducting active military missions overseas, or engaging in antinuclear proliferation negotiations with hostile foreign powers. There is little, if anything, that the governor handles that a little more public scrutiny could drastically harm; no death of American citizens or international conflict will result. See Nixon, 418 U.S. at 710, 715. The scale of the privilege should reflect the difference in scale between the offices. The multitude of exemptions available under the PRA sufficiently protect the governor’s access to candid advice. See, e.g., RCW 42.56.280 (exempting the preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended).
¶66 Furthermore, secrecy may be mundane at the federal level, but it is not in Washington. The Supreme Court in Nixon acknowledged that “[t]here is nothing novel about [federal] governmental confidentiality” and cited in support the fact that the Constitutional Convention of 1787 was conducted in complete privacy. Nixon, 418 U.S. at 705 n.15. In contrast, Washington’s convention was conducted under the watchful eye of the public. Yelle v. Bishop, 55 Wn.2d 286, 292, 347 P.2d 1081 (1959) (noting the presence of newspa*719pers at the convention). The very first section of the very first article in our state constitution establishes that the government, including the governor, derives its power from the consent of the people. Wash. Const, art. I, § 1 (“All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.”). The framers undoubtedly intended for that consent to be informed. Accordingly, the PRA is just a statutory acknowledgement of this long tradition and history. It was not groundbreaking for our state when the voters declared in the PRA that
[t]he people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.
RCW 42.56.030. Open government is one of our state’s clearest and most fundamental guiding principles.
¶67 Contrary to the majority’s contention, failing to recognize a gubernatorial communications privilege would not “subvert the integrity of the governor’s decision making process” and “damag[e] the functionality of the executive branch.” Majority at 697. Our state has functioned quite well for over 100 years without this privilege.13 It is instructive that the current governor does not think the *720privilege will be essential to the “functionality” of his administration.14
¶68 Moreover, the statements in Nixon, 418 U.S. at 686, the majority cites in support of its argument make more sense within the specific context of that case. Secretly recorded conversations were at issue in Nixon.15 Here, we deal not with secretly recorded conversations but with written documents, i.e., reflective communications. If we refused to acknowledge a privilege in this case, it would likely mean that the governor and his or her aides would have to be more thoughtful and reflective in their circulated written communications. One would hope that the officials in question are already not offering foolish advice and are already refraining from suggesting actions that would violate statutes or regulations. In other words, the predominant effect would be on tone, not candor. “Could it be that a governor might be more inclined to take good advice if he [or she] knows that the public will one day see that he [or she] was offered it?” State ex rel. Dann v. Taft, 109 Ohio St. 3d 364, 389, 2006-Ohio-1825, 848 N.E.2d 472 (Pfeifer, J., dissenting).
c. Washington’s Constitution and Laws
¶69 Washington’s constitution and laws demonstrate a strong tradition of open government that should not be overridden out of concern that the governor or his or her aids might have to be a little less inflammatory in their memoranda or might have to stop suggesting illegal courses of action. The governor offers no concrete evidence that the executive does not function effectively because of the lack of a gubernatorial communications privilege. The majority is *721exempting the governor from one of this state’s clearest guiding principles — open government — on the basis of vague conclusions about human behavior.16 It would not be unprecedented for our state to decline to give our governor such a powerful privilege.
¶70 In a case that the majority ignores, the Massachusetts Supreme Judicial Court declined to recognize an executive privilege. Babets v. Sec’y of Human Servs., 403 Mass. 230, 526 N.E.2d 1261 (1988). The court held that the “doctrine of separation of powers does not require recognition” of the executive privilege. Id. at 1263. The court additionally held that its “declining to recognize the asserted privilege does not constitute the exercise of nonjudicial power or interfere with the Executive’s power.” Id. The court found it significant that the government “failed to demonstrate that the Executive does not function effectively because of the lack” of the privilege. Id. The court reasoned that if “the framers of our government’s structure intended to recognize in [Massachusetts’s] [c]onstitution an executive privilege, it is reasonable to expect that they would expressly have created one.” Id. The court concluded that having a more thorough “public debate about the meaning and purposes of executive policy may result in better policymaking.”Id. at 1266. Like the Babets court, and under the same rationale as the Babets court, we should decline to grant this privilege.17
*722¶71 Contrary to the majority’s implication, to deny the governor the requested privilege would not open the inner workings of the governor’s office to one and all. The PRA currently contains hundreds of exemptions that could potentially apply to public records in the governor’s possession. For example, the deliberative process exemption protects “[p]reliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended . . . .” RCW 42.56.280. Other examples include exemptions for attorney-client communications, attorney work product, and records related to state security and the prevention of terrorism, as well as records related to ongoing investigations. RCW 42.56.240 (investigative records), .420 (records relating to state security and the prevention of terrorism). In sum, there are sufficient statutory protections for sensitive information in the governor’s possession.18 Our constitution does not mandate the majority’s recognition of a gubernatorial communications privilege.19
II. If Our Constitution Did Require the Recognition of a Gubernatorial Communications Privilege, Then This Court Should Have Adopted a Test That Does a Better Job of Limiting the Privilege than the Nixon Test
a. The Nixon Three-Step Test
¶72 If our constitution required the recognition of this privilege, then the majority should have adopted a better test. The majority’s adoption of the Nixon three-step is like a surgeon using a hatchet when a scalpel is clearly more *723appropriate.20 Such a powerful privilege is not necessary to protect the independence, integrity, or prerogatives of our state’s executive branch.
¶73 The majority describes the Nixon test and attempts to apply it but fails to adequately justify why our state should adopt it. The majority simply opines that the trial court used the Nixon test because the Freedom Foundation failed to provide a satisfactory alternative test and then summarily applies the Nixon test as our law.21 Majority at 693. As noted above, the majority fails to consider the obvious differences between a governor and a president or our state’s unique constitution, history, and traditions. If our constitution required recognition of this privilege, a more limited test would be better suited to our state.
¶74 The majority could improve on the Nixon test, which was formulated in the context of a discovery dispute, in a number of ways. For example, one of the cases the majority cites to supports recognition of a gubernatorial communications privilege and applies a test that improves Nixon, in favor of disclosure, by not requiring a showing of particularized need or a balancing of interests. See Republican Party of N.M. v. N.M. Taxation & Revenue Dep’t, 2012-NMSC-026, 283 P.3d 853. In Republican Party of New Mexico, the Republican Party and the director of a voting organization brought an action to enforce a public records request under the New Mexico Inspection of Public Records Act (IPRA), N.M. Stat. Ann. §§ 14-2-1 to -12, against the Taxation and Revenue Department and Motor Vehicle Division. Republican Party of N.M., 283 P.3d at 856-57. Both agencies responded, disclosing some of the requested documents but redacting some of the information pursuant to, among other claims, a claim of executive privilege. Id. at 857. The New Mexico court recognized *724a gubernatorial communications privilege analogous to that afforded the president. Id. at 868. The court then laid out a test that adapted the Nixon test to better align with the principles of open government found in that state (similar to but not as strong as those found in Washington).
¶75 The court said that because the IPRA does not require a requesting party to “assert any particular need for disclosure,” courts should not “balance the competing needs of the executive and the party seeking disclosure.” Id. at 870. Instead, the courts should “independently determine whether the documents at issue are in fact covered by the privilege ....” Id. The court said that “[w]here appropriate, courts should conduct an in camera review of the documents at issue as part of their evaluation of privilege.” Id. In other words, in New Mexico, a person seeking to enforce a public records request does not have to show a particularized need, and the court will evaluate the governor’s claim of executive privilege independently, more readily using in camera review, without balancing any purported interests. Republican Party of New Mexico eliminates steps two and three of the Nixon test and focuses much less deferentially on step one: whether the privilege is properly asserted in the first place. Given the strength of our state’s PRA and the obvious differences between a governor and the president, it is not readily apparent why the majority did not adopt the test laid out in Republican Party of New Mexico.
¶76 As I have already discussed supra, the majority disregards the dramatic differences in the respective powers and responsibilities of the governor and the president. Our superior court judges are not going to be asked to look at plans for clandestine CIA operations or sensitive foreign policy strategies. Additionally, we have no reason to believe that the judges called on to review these documents in camera will inevitably and invariably disclose the contents of what they have reviewed. All evidence is to the contrary. Adopting a test for PRA requests, like that used in New Mexico, would be one way for the majority to create its *725desired privilege while better preserving Washington’s preference for open government. Given the difference between the president and the governor, the governor’s privilege does not have to be as impenetrable. Even states that have fully adopted all three Nixon steps in every context acknowledge that in camera review would have only a minimal effect on candor, if any at all.22 See Hamilton v. Verdow, 287 Md. 544, 566, 414 A.2d 914 (1980).
¶77 Providing for in camera review of this nature would be an appropriately limited check and balance on such a powerful executive privilege. It is the least the majority could have done after constructing this large wall of secrecy around the executive. Requiring a showing of particularized need “before a judicial determination is made as to whether the material is sufficiently related to the gubernatorial decision! ]making process to qualify for confidential treatment ..., the majority makes it possible for the governor to withhold documents on the basis of a privilege that is not applicable in the first place.” Dann, 109 Ohio St. 3d at 382 (Resnick, J., dissenting). It is possible to be respectful of our separation of powers doctrine without being as deferential as the majority. The governor of Washington emerges from this case with a privilege found nowhere in our constitution and grossly out of proportion with his or her responsibilities.
b. Muddling the Nixon Test
¶78 In highlighting many of the limitations Nixon and its progeny have placed on the executive communications privilege, the majority fails to acknowledge additional limitations that surely would apply to a gubernatorial privi*726lege.23 For example, early in its opinion when describing the Nixon test the majority says that the “governor or the governor’s representative creates the presumption that a document is privileged by stating that he or she has reviewed the document and ‘determined that it falls within the privilege Majority at 692 (quoting Clerk’s Papers at 237).24 Later in the opinion, the majority states that it is the “governor [who] must provide a privilege log ....” Id. at 704-05.1 assume that the majority is fully behind its latter statement: it is the governor who bears the responsibility of creating the presumption. This task should not be performed by the governor’s representative without direct and specific instruction from the governor. Some states require the governor to attest in a sworn affidavit to the facts (1) that he or she has reviewed the documents in question personally and (2) that the document are covered by the privilege. See, e.g., John Doe v. Alaska Superior Court, 721 P.2d 617, 626 (Alaska 1986). At the very least, requiring an affidavit would be appropriate. This is a task that may not be performed by an advisor, regardless of how close he or she is to the governor. The privilege is the governor’s.
¶79 Additionally, it is unclear from the majority’s opinion whether or not the ability to assert the privilege passes to the incumbent governor or stays with the governor that created the document in question. There is case law supporting the notion that the privilege belongs predominantly to the incumbent. See, e.g., Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 786 (Del. Super. Ct. 1995) (“The privilege belongs to the Chief Executive and may be waived *727only by an incumbent of that office.”); Nixon v. Sampson, 389 F. Supp. 107, 152 (D.D.C. 1975) (“[I]t is the incumbent President, not the former President, who bears the legal and political responsibility for either asserting or waiving the privilege.”). Additional authority supports the idea that the former executive’s ability to assert privilege is eroded with time. See, e.g., Judicial Watch, Inc. v. Dep’t of Justice, 361 U.S. App. D.C. 183, 365 F.3d 1108, 1124 (2004) (“[T]he ‘expectation of the confidentiality of executive communications [ ] has always been limited and subject to erosion over time after an administration leaves office.’ ” (second alteration in original) (quoting Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 451, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977))); Dellums v. Powell, 182 U.S. App. D.C. 244, 561 F.2d 242, 245 (1977) (“Assuming arguendo a former President may present a claim of presidential privilege, we agree with the District Court . . . that it is entitled to lesser weight than that assigned the privilege asserted by an incumbent President ____”). Given the differences between the president and our governor, if a document was created by a former governor and never identified as privileged by that governor, it should be completely up to the incumbent governor to decide whether or not it is privileged.25
c. The Privilege Log
¶80 The majority requires the governor to “provide a privilege log listing the documents involved, the author and recipient, and a general description of the subject matter” that gives enough detail to allow a court to “evaluate the propriety of the governor’s claims” before the governor is entitled to the presumption. Majority at 704-05. It is not entirely clear from the majority’s opinion where the “log” *728the majority is referring to is located in the clerk’s papers. If it is the spreadsheet found on page 124 of the clerk’s papers, the log is grossly insufficient.
¶81 For example, the spreadsheet provides the following description for one of the withheld documents: a “Briefing Document,” No. PRR. 15-20, dated April 20, 2009, authored by Executive Policy Advisor B. Nichols, received by Governor Gregoire, regarding the “Columbia River Biological Opinion.” Clerk’s Papers (CP) at 124. Yes, it is a communication from a top policy advisor to the governor, but the description is extremely vague and it is unclear how the document relates to the governor’s decision making other than the fact that it involves some kind of briefing about the opinion. See majority at 704 (requiring that the communications to be for the purpose of gubernatorial deliberations, policy making, and decision-making). This description alone hardly seems sufficient to allow the court to grant the governor the extremely strong presumption that it is privileged.
¶82 Another example is an e-mail authored by the governor’s executive assistant and sent to “Executive Policy and Senior Staff.” CP at 124. In its opinion, the majority states that “[t]his document. . . incorporated questions the governor wrote and directed her assistant to forward on to the policy staff----” Majority at 707. Where did the majority get this additional information about the governor being the “true” author? It is not in the spreadsheet. The description of the document as an “Email” with an attached “Briefing Document” containing the “Governor’s handwritten notes” about “BPA/BiOp/Alcoa” again is insufficient to definitively conclude that this communication had anything to do with gubernatorial deliberations, policy making, and decision-making. CP at 124. It is unclear what policy choices this document helps inform. Moreover, who are the specific “Executive Policy and Senior Staff” the log identifies as the recipients? The description of the recipients is much too vague. It is instructive to compare and contrast *729this “log” with the log found in Judicial Watch, 365 F.3d at 1129.
¶83 In Judicial Watch, the log is more detailed in its description of the document being withheld. See id. For example, the first entry describes the document as “[correspondence control sheets forwarding proposed recommendations on pardon applications.” Id. Another document is described as “providing [the aide’s] proposed recommendations on certain pardon applications.” Id. Both descriptions show much more clearly how the documents relate to executive decision-making. The documents relate to the president’s exercise of his pardon power. In addition, both of these entries contain the full names of the recipients when their identities are not perfectly clear from their job titles. Id.
¶84 If, however, the majority defines “log” to include both the spreadsheet and the explanatory letter from the governor’s general counsel, encompassing pages 121 to 123 of the clerk’s papers, then I would say that it is likely sufficient. The accompanying letter provides much of the detail the majority seems to be referring to when it claims that the governor’s log is sufficient. For example, it is the letter that explains that the e-mail from the governor’s executive assistant transmits questions the governor posed to her policy staff, as well as some of these staff’s responses. CP at 123. Moreover, the letter explains that the documents being withheld concern ongoing matters and, if disclosed, might inhibit the candor of her policy advisers and staff. These arguments and observations may seem overly technical, but when we are dealing with government secrecy and the public’s right to know, we should hold the governor to a high standard.26
*730Conclusion
¶85 The majority did not have to create this powerful gubernatorial communications privilege in order to preserve the integrity of the executive branch — this is a poorly considered policy choice. The majority attempts to reassure us that the gubernatorial communications privilege will not “shroud all conversations involving the governor in secrecy and place them beyond the reach of public scrutiny” but at the same time gives great “deference to a governor’s decision that material falls within the ambit of executive privilege.” Majority at 704. As a result of the majority’s opinion, the governor is much freer to operate in the dark. The majority ignores the lessons of history that “strongly suggest! ] that the theoretical dangers of government-by-fishbowl are greatly outweighed by the actual fact of excessive secrecy.” Raoul Berger, Executive Privilege in Light of United States v. Nixon, 9 Loy. L.A. L. Rev. 20, 21 (1975).
¶86 Seeing as the majority has decided to speculate about human behavior, I will speculate that it will be extremely tempting for the governor to cloak most communications in his or her office with the privilege. Concerned citizens will have to bring difficult and expensive lawsuits in order to get a closer look at their governor. The majority has “slammed the door on open government as it pertains to the governor.” Dann, 109 Ohio St. 3d at 390 (Pfeifer, J., dissenting). 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.
¶87 If the people of this state correct this decision by legislation or constitutional amendment, they surely will be holding their current governor to his promise. Future governors need to understand what our current governor apparently understands: that “ ‘the insubstantial exercise of the privilege inevitably bears costs in credibility and *731public accountability, upon which each branch of government fundamentally relies.’ "Id. at 381 (Resnick, J., dissenting) (quoting Killington, Ltd. v. Lash, 153 Vt. 628, 641, 572 A.2d 1368 (1990)).
¶88 Washington has a unique constitution and legal framework — courts must be open, and citizens can enact or disapprove laws and remove elected officials. Initiative 276 added assurance that secrecy could not surround government action. All this is predicated on the simple principle of open government. As another state judge once noted (also in dissent), “It is debatable whether [the gubernatorial communications privilege as previously recognized in other states] has inured to the benefit of [those states] or merely to the benefit of executives who wish to avoid embarrassment.” Id. at 384 (Pfeifer, J., dissenting). If the majority thinks it is improving Washington government by judicially creating this overly powerful privilege, it is mistaken. The new governor’s disavowal supports this conclusion. “ ‘No nation [or state] ever yet found any inconvenience from too close an inspection into the conduct of its officers, but many have been brought to ruin . . . only because the means of publicity had not been secured.’ ” Reynolds v. United States, 192 F.2d 987 (3d Cir. 1951) (quoting 1 The Complete Works of Edward Livingston on Criminal Jurisprudence 15 (1873)). I respectfully dissent.
Notably, a “gubernatorial communications privilege” clause is nowhere to be found in our state constitution. Presumably, our framers did not think our governor needed such a powerful privilege in order to receive the candid advice necessary to exercise his or her constitutional duties.
The majority cites to a declaration from the governor’s counsel, Narda Pierce, to imply that the governors in this state have a long and established history of asserting executive privilege. See majority at 702 (citing to Clerk’s Papers (CP) at 27). This declaration contains a conclusory statement that “previous governors [have] recognized” the privilege, citing to only one other, very recent, example of a governor who asserted the privilege: Gary Locke. CP at 27 (Decl. of Narda Pierce). Notably, Ms. Pierce was “Solicitor General in the Attorney General’s Office from 1993-2005 and in that role interacted with and provided advice to [Gary Locke] and his staff.” Id. The majority’s citation does not refute my point.
Governor Inslee said that he would not invoke the executive communications privilege that Governor Gregoire has used to block the release of the records in this case. Brad Shannon, McKenna, Inslee Seek Open Records, The Olympian, June 17, 2012, at A3, A12.
Washington law makes it illegal to record a conversation without mutual consent. RCW 9.73.030.
Additionally, the majority fails to recognize that the governorship is weaker in this state than in some of the other states that have adopted an executive communications privilege. For example, in New Jersey, a state the majority points to as being a “sister,” the framers had as a primary objective the creation of a strong executive. Majority at 697; Nero v. Hyland, 76 N.J. 213, 386 A.2d 846, 853 (1978). In contrast, under article III, section 1 of the Washington Constitution the executive power in this state is fragmented into eight separate elected offices: governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and commissioner of public lands.
The majority ignores the broader nature of the Massachusetts Supreme Judicial Court’s analysis when it concludes that Babets is “inapposite.” Majority at 701 n.6. Yes, the deliberative process privilege was what was specifically at issue in Babets, but the court’s analysis is applicable and persuasive beyond that context.
Additionally, the majority’s conclusory argument that a gubernatorial communications privilege is an exemption to the PRA is disingenuous. Majority at 697. In reality, the majority is ruling the PRA unconstitutional as it is applied to the governor without expressly doing so.
Ironically, the majority instructs the people of this state that they must amend the constitution in order to overcome a privilege nowhere found in our state constitution, unnecessary to ensuring the governor’s receipt of candid advice, and contrary to the populist traditions and history of this state.
This careless surgeon has killed the patient (open government).
The Freedom Foundation advocated applying the procedural rules of the PRA.
Allowing for “limited intrusion ... in light of... substantial public interests” would not be unprecedented. Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 451-53, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977) (allowing a government archivist to screen communications a former president has identified as being covered by the executive communications privilege).
Additionally, the majority does not reach the third Nixon step because Freedom Foundation declined to demonstrate a specific need, but when the balancing of the requester’s need and the governor’s interest is conducted, we should require the governor to prove by clear, cogent, and convincing evidence that the requested disclosure will interfere with the performance of the governor’s constitutional function. See Lee Marchisio, Executive Privilege Under Washington’s Separation of Powers Doctrine, 87 Wash. L. Rev. 813, 842-43 (2012).
It is not clear why the majority chose to quote the superior court order when outlining the contours of the Nixon test instead of citing directly to Nixon, 418 U.S. 683. Direct reference to Nixon might have prevented this confusion.
Additionally, I feel it is important to note that under ROW 40.14.030, the governor must still transfer his or her public records to the state archives regardless of their “privileged” status. Under RCW 40.14.030(2), the records would maintain their “privileged” status. Archiving would not be a violation of separation of powers. See Nixon, 433 U.S. at 450-55 (allowing for archiving of privileged documents).
I am not declaring that the combination of this letter plus this log provides a perfect example of what is required to obtain the presumption. Future courts should thoroughly scrutinize these logs to ensure that they contain sufficient detail.