dissenting.
{¶ 75} I fully agree with all that Justice Pfeifer has written in his powerful and compelling dissenting opinion. I write only to add that even the majority’s adoption of a gubernatorial-communications privilege fails to justify the protection it affords to the documents at issue. .
{¶ 76} Lying at the heart of the executive privilege for presidential or gubernatorial communications “is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential [or gubernatorial] decisionmaking. A President [or governor] and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” United States v. Nixon (1974), 418 U.S. 683, 708, 94 S.Ct. 3090, 41 L.Ed.2d 1039. This protection “is for the benefit of the public and not the governmental officials who claim the privilege.” Hamilton v. Verdow (1980), 287 Md. 544, 563, 414 A.2d 914.
{¶ 77} The privilege “is limited to communications * * * made ‘in the process of shaping policies and making decisions.’ ” Nixon v. Admr. of Gen. Servs. (1977), 433 U.S. 425, 449, 97 S.Ct. 2777, 53 L.Ed.2d 867, quoting United States v. Nixon, 418 U.S. at 708, 94 S.Ct. 3090, 41 L.Ed.2d 1039. It is properly invoked when the chief executive is “asked to produce documents or other materials that reflect presidential decisionmaking and deliberations.” In re Sealed Case (C.A.D.C.1997), 121 F.3d 729, 744. “The presidential communications privilege should never serve as a means of shielding information regarding governmental *381operations that do not call ultimately for direct decisionmaking by the President.” Id. at 752.
{¶ 78} The executive privilege, whatever its form, is “not to be lightly invoked.” United States v. Reynolds (1953), 345 U.S. 1, 7, 73 S.Ct. 528, 97 L.Ed. 727. The communications privilege in particular “is invoked only rarely.” Sealed Case, 121 F.3d at 738. Otherwise, “the insubstantial exercise of the privilege inevitably bears costs in credibility and public accountability, upon which each branch of government fundamentally relies.” Killington, Ltd. v. Lash (1990), 153 Vt. 628, 641, 572 A.2d 1368.
{¶ 79} Thus, it is imperative that the governor be required to specifically identify and precisely describe the nature of the documents sought to be protected and explain why they fall within the scope of the privilege. See Herald Assn., Inc. v. Dean (2002), 174 Vt. 350, 356, 816 A.2d 469; New England Coalition for Energy Efficiency & Environment v. Office of Governor (1995), 164 Vt. 337, 344, 670 A.2d 815; Doe v. Alaska Superior Court, Third Judicial Disk (Alaska 1986), 721 P.2d 617, 626; Black v. Sheraton Corp. of Am. (C.A.D.C.1977), 564 F.2d 531, 543; Thill Securities Corp. v. New York Stock Exchange (E.D.Wis. 1972), 57 F.R.D. 133, 138; Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena (D.D.C.1966), 40 F.R.D. 318, 326. See, also, Reynolds, supra, 345 U.S. at 9-10, 73 S.Ct. 528, 97 L.Ed. 727 (“Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers”).
{¶ 80} In this case, Governor Taft, albeit through counsel, has been claiming all along that public access to the weekly reports from James Conrad and James Samuel “would discourage future necessarily candid advice from Directors and Executive Assistants to the Governor” and “make it impossible for Directors and staff to communicate openly and effectively with the Governor — particularly about sensitive policy initiatives, legal issues or other ideas still in the formative stages.” However, the governor’s office has since released all of the requested weekly reports from Conrad for the period January 1999 through August 2004 and certain weekly reports from Samuel that contain information relating to the Bureau of Workers’ Compensation, and these reports do not bear out the governor’s claims.
{¶ 81} These reports do not reflect gubernatorial decisionmaking, and they do not appear to meet the majority’s test, i.e., they were not “made for the purpose of fostering informed and sound gubernatorial deliberations, policymaking, and decisionmaking.” Nothing about these reports is advisory, investigatory, decisional, consultative, deliberative, or sensitive in nature, at least not in any sense or to any degree that would justify their protection under the executive privilege. They are, by and large, innocuous administrative and bureaucratic transmissions, at times informative of public events, but by no means so reflective of the *382sensitive decisional responsibilities of the governor as to warrant the protection of such a high privilege. Indeed, the governor’s chief policy advisor and director of cabinet affairs testified at deposition that executive administrators have used other means of communicating sensitive information to the governor.
{¶ 82} It should be immediately obvious to anyone conducting a forthright review of these reports that they are manifestly distinguishable from the investigative and advisory records that have been held by various courts to raise a presumptive privilege for presidential or gubernatorial communications. They are so far removed from the vital public interest in the effectiveness of the governor’s decisionmaking duties that to even suggest their entitlement to protected status makes a mockery of the executive privilege, whatever its form.
{¶ 83} And yet the majority establishes a paradigm for invoking the privilege that enables the governor to withhold the remaining undisclosed reports by Samuel without having to satisfy the criteria of the privilege. Under the majority’s paradigm, the governor must first assert the privilege himself by declaring that he “has reviewed the requested materials and concluded that the materials meet the criteria of the privilege, i.e., that they constitute a communication either to or from him and were made for the purpose of fostering informed and sound gubernatorial deliberations, policymaking, and decisionmaking.” This declaration by the governor “result[s] in a presumption that the requested documents are legally protected and confidential.”
{¶ 84} But the governor is not required to explain how these reports are related to the gubernatorial decisionmaking, deliberative, or policymaking process, and the party seeking disclosure, in this case Senator Dann, is not permitted to rebut the presumption by showing that the documents sought to be withheld are unrelated to the gubernatorial decisionmaking process. As strange as it sounds, the senator cannot rebut the presumption that the criteria of the privilege have been met by showing that the criteria of the privilege have not been met. Instead, to overcome the presumptive privilege, Senator Dann “must demonstrate a particularized need for disclosure of the material deemed confidential by the governor.” Only then will the majority “determine whether the communications to the governor were in fact made for the purpose of fostering informed and sound deliberations, policymaking, and decisionmaking.”
{¶ 85} By requiring the senator to demonstrate a particularized need for the requested reports before a judicial determination is made as to whether the material is sufficiently related to the gubernatorial decisionmaking process to qualify for confidential treatment under the executive privilege, the majority makes it possible for the governor to withhold the documents on the basis of a privilege that is not applicable in the first place. Thus, if Senator Dann is unable to show a particularized need for the Samuel reports, the majority will deny him *383access without ever deciding whether the criteria of the privilege are met. In that event, judicial control over the question of applicability will have been abdicated to the caprice of the governor.
{¶ 86} I respectfully dissent.