dissenting.
{¶ 87} “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 (1910) 103.
{¶ 88} For over 200 years, the state of Ohio has existed without a gubernatorial-communications privilege. For over 200 years, we have had an open government, with an executive branch designed to be limited in power. Why now does the governor come before this court claiming a heretofore unrecognized privilege? Are we in the midst of a crisis of state? No, the governor is in the midst of a crisis of politics. That he chooses these circumstances to assert that the privilege is “essential for effective governance” is a Farce; the majority, in ignoring our Constitution, statutes, and traditions to grant his wish, has written a Prologue to a Tragedy.
The Applicability of the “Deliberative Process” Privilege
{¶ 89} To dissent from this court’s grant of unprecedented power is not to presume to open the inner workings of the governor’s office to one and all. Certainly, the governor is entitled to privacy in the making of decisions, and, to that end, the common law recognizes the “deliberative process” privilege. The deliberative-process privilege “allows the government to withhold documents and other materials that would reveal ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ ” In re Sealed Case (C.A.D.C.1997), 121 F.3d 729, 737, quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena (D.D.C.1966), 40 F.R.D. 318, 324. The aim of the privilege is to encourage unrestrained debate in the formulation of policy, but to keep public purely factual information:
{¶ 90} “Two requirements are essential to the deliberative process privilege: the material must be predecisional and it must be deliberative. * * * Both requirements stem from the privilege’s ‘ultimate- purpose[, which] * * * is to prevent injury to the quality of agency decisions’ by allowing government officials *384freedom to debate alternative approaches in private. [Natl. Labor Relations Bd. v. Sears, Roebuck & Co. (1975)], 421 U.S. [132] at 151, 95 S.Ct. [1504, 44 L.Ed.2d 29]. The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.” In re Sealed Case, 121 F.3d at 737.
{¶ 91} Why is the deliberative-process privilege not enough for the governor? We do not know. However, we do know that “where there is reason to believe [that] the documents sought may shed light on government misconduct, ‘the [deliberative-process] privilege is routinely denied,’ on the grounds that shielding internal government deliberations in this context does not serve ‘the public’s interest in honest, effective government.’ ” Id. at 738, quoting Texaco Puerto Rico, Inc. v. Dept. of Consumer Affairs (C.A.1,1995), 60 F.3d 867, 885.
The Inapplicability of Nixon
{¶ 92} It is appropriate only on an ironic level that the majority relies so heavily on United States v. Nixon (1974), 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039, a case wherein President Nixon raised the lofty ideals of separation of powers and the necessity of candor in presidential decisionmaking to prevent the release of evidence about what Presidential Press Secretary Ron Ziegler famously called a “third-rate burglary.” Having demeaned the office of the presidency, Nixon cloaked himself in its majesty in a vain attempt to save himself. Lest we forget, Nixon lost. But since that time, we have been living with the effects of the dicta from Nixon wherein the court stated that presidential communications — not just deliberative or predecisional communications — are privileged. Id. at 708-712, 94 S.Ct. 3090, 41 L.Ed.2d 1039. It is debatable whether that privilege has inured to the benefit of the republic or merely to the benefit of executives who wish to avoid embarrassment.
{¶ 93} But that is not our concern here. We are not dealing with the Presidency and its exceptional privileges. We are dealing with the governorship of Ohio. In ruling against Nixon, the court found it significant that he did “not place his claim of privilege [against disclosure] on the ground [that] they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.” Nixon, 418 U.S. at 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039. The duties present in Article II for the President that most require secrecy — national security and diplomacy — simply are not part of the governor of Ohio’s responsibilities. The Nixon court established the uniqueness of the federal executive-communications privilege, a privilege that owes itself to “the singularly unique role under Art. II of a *385President’s communications and activities, related to the performance of duties under that Article.” Id. at 715, 94 S.Ct. 3090, 41 L.Ed.2d 1039.
{¶ 94} The court makes it clear that the sensitivity of the information available to the President necessitates the privilege:
{¶ 95} “[A] President’s communications and activities encompass a vastly wider range of sensitive material than would be true of any ‘ordinary individual.’ It is therefore necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment.” (Footnote omitted.) Id.
{¶ 96} There is a dramatic difference in degree between the duties and responsibilities of the president and the Ohio governor. One has global impact daily; the other clearly does not. Though their roles may be analogous, their duties and responsibilities are far from equal. The scale of the privilege should reflect the difference in scale between the offices. The common-law deliberative-process privilege is an appropriate privilege for the governor’s office.
The Ohio Constitution and Open Records Law
{¶ 97} As the majority points out, there is an “absence of controlling Ohio statutory, constitutional, or common-law authority concerning gubernatorial executive privilege.” That is exactly the point, and we need not look further. Ohio has its own Constitution and laws, and those together demonstrate this state’s tradition of open government and limited gubernatorial power. There is no room under Ohio law for a gubernatorial-communications privilege.
{¶ 98} Ohio has a long tradition of open government, dating back to the formation of its Constitution. In Nixon, the court speaks of secrecy in government as mundane:
{¶ 99} “There is nothing novel about governmental confidentiality. The meetings of the Constitutional Convention in 1787 were conducted in complete privacy. * * * Moreover, all records of those meetings were sealed for more than 30 years after the Convention. * * * Most of the Framers acknowledge that without secrecy no constitution of the kind that was developed could have been written.” Nixon, 418 U.S. at 706, 94 S.Ct. 3090, 41 L.Ed.2d 1039, fn. 15.
{¶ 100} Ohio history belies the court’s characterization. Unlike the federal constitution, Ohio’s Constitution was created in the open. Thousands of pages of contemporaneous writings, including transcripts of the debate, from Ohio’s constitutional conventions of 1802, 1851, 1873, and 1912 have been published. Ohio has been open from the beginning:
*386{¶ 101} “The common-law right to inspect government documents has been recognized in Ohio since the earliest reported court decisions. As there was no statutory provision to the contrary (and no constitutional mandate), the right to inspect public records was subject only to the condition that the inspection did not endanger the safety of the record or unreasonably interfere with the duties of the public official having custody of the record.” (Footnote omitted.) Moyer, Interpreting Ohio’s Sunshine Laws: A Judicial Perspective (2003), 59 N.Y.U.Ann. Surv.Am.Law 247, 248.
{¶ 102} The Public Records Act, R.C. 149.43, is a statutory acknowledgement of Ohio’s tradition of open government. As this court just stated in Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 17:
{¶ 103} “[0]ur founders rejected the English common law and property theories that curtailed citizens’ access to governmental information. See [State ex rel.] Natl. Broadcasting Co., [Inc. (1988)] 38 Ohio St.3d [79] at 81, 526 N.E.2d 786; Wells v. Lewis (1901), 12 Ohio Dec. 170; Moyer, 59 N.Y.U.Ann.Surv.Am.L. at 247-248. Instead, our legislators, executives, and judges mandated and monitored the careful creation and preservation of public records, White [v. Clinton Cty. Bd. of Commrs. (1996)], 76 Ohio St.3d [416] at 419, 667 N.E.2d 1223, and codified the people’s right to access those records. Such statutes, including * * * R.C. Chapter 149, reinforce the understanding that open access to government papers is an integral entitlement of the people, to be preserved with vigilance and vigor. See, e.g., State ex rel. Warren Newspapers, Inc. v. Hutson (1994), 70 Ohio St.3d 619, 623, 640 N.E.2d 174; [State ex rel. Strothers v.] Wertheim [(1997)], 80 Ohio St.3d [155] at 157, 684 N.E.2d 1239; Dayton Newspapers, Inc. v. Dayton (1976), 45 Ohio St.2d 107, 109, 74 O.O.2d 209, 341 N.E.2d 576.”
{¶ 104} This court in the past has emphasized that underlying the Public Records Act is the “ ‘fundamental policy of promoting open government, not restricting it.’ ” Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 7, quoting State ex rel. The Miami Student v. Miami Univ. (1997), 79 Ohio St.3d 168, 171, 680 N.E.2d 956. The rule in Ohio is that public records are the people’s records and that the officials in whose custody they happen to be are merely trustees for the people. State ex rel. Patterson v. Ayers (1960), 171 Ohio St. 369, 371, 14 O.O.2d 116, 171 N.E.2d 508. Moreover, the Act “is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records.” State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 376, 662 N.E.2d 334. Can the majority truly say that there is not “any doubt” that the governor’s claimed privilege is as broad as he represents?
*387{¶ 105} R.C. 149.43 does provide specific exceptions to the general requirement that “all public records” be available for public review. R.C. 149.43(A)(l)(v) removes from the definition of “public record” “[rjecords the release of which is prohibited by state or federal law.” R.C. 101.30(B) excepts from the definition of public records certain documents created by legislative staff for members of the General Assembly. However, the General Assembly did not create any such exception for gubernatorial documents. This is the case despite the fact that R.C. 149.03 specifically authorizes the governor to require reports from the offices he oversees: “The governor may at any time require to be filed with him a detailed report from any state officer, board, or commission.”
{¶ 106} The Ohio Constitution also specifically allows for certain legislative proceedings to be held in secret. Section 13, Article II. Although the decision to hold secret proceedings in the General Assembly requires a two-thirds vote and is rarely used, no section provides for any type of similar secrecy for gubernatorial communications. The constitution does expressly contemplate communications between the governor and other persons within the executive branch. Section 6, Article III grants the governor the authority to “require information, in writing, from the officers in the executive department, upon any subject relating to the duties of their respective offices,” but does not grant the governor the authority to keep that information secret.
{¶ 107} The majority recognizes that Ohio is a state that has severely restricted the powers of governors. Governor Thomas Corwin told friends that “they overestimated the honor of being Governor of Ohio. The framers of the constitution stripped the Governor of Ohio of all power and made him a mere dummy to fill the Governor’s chair.” John Jay Janney and his “Recollections of Thomas Corwin” (1964), 73 Ohio History 100, 109.
{¶ 108} Over the years, the Ohio Constitution has béen amended to give more power to the governor. The General Assembly has set forth duties and powers of the governor in legislation. Those powers, which are carefully described by constitutional amendment and statute, have never included an entitlement to a gubernatorial-communications privilege.
Separation of Powers
{¶ 109} Section 2, Article I of the Ohio Constitution lays to rest any concerns about a gubernatorial privilege being necessary to preserve the separation of powers. That section reads: “[N]o special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.” The Ohio Constitution grants the power to the General Assembly to lay waste to any privilege claimed by the governor or acknowledged by this court. Ohio, which, as the majority acknowledges, “unlike other jurisdictions, does not have a constitutional provision specifying the concept of separation of powers,” does *388specifically establish the primacy of the General Assembly in regard to privileges and immunities.
{¶ 110} The majority establishes the gubernatorial privilege as an inherent, constitutional power that is untouchable by the General Assembly. This phantom constitutional privilege is in complete contravention of Section 2, Article I, an actual constitutional provision, which gives the General Assembly the power to alter, repeal, or revoke any privilege.
{¶ 111} The majority seems to imply that because the legislature has a statutorily created privilege, and the courts have a common-law privilege protecting certain notes from disclosure under the Public Records Act, the governor should also have some privilege to keep him on equal footing with the other branches of government. The three branches of government, however, are not three children that must be treated equally to ensure domestic peace. Moreover, the privilege requested by the governor dwarfs those enjoyed by the General Assembly and the judicial branch. It is as if one sibling demands a bakery because his two siblings received a piece of pie.
{¶ 112} As mentioned above, R.C. 101.30(B) excepts from the definition of “public records” certain documents created by legislative staff for members of the General Assembly. The extremely limited exception to the Public Records Act for the courts was set forth in State ex rel. Steffen v. Kraft (1993), 67 Ohio St.3d 439, 440, 619 N.E.2d 688, where this court held that the notes a judge took as he presided over a murder trial were not public records under R.C. 149.43. This court wrote that R.C. 149.43(A)(1) “does not define a ‘public record’ as any piece of paper on which a public officer writes something. No law or regulation requires such notes.” Id. at 440, 619 N.E.2d 688. This is to be contrasted with reports prepared for the governor by his directors, administrators, and commissioners. Although R.C. 149.03 and Section 6, Article III of the Ohio Constitution do not require the submission of reports to the governor by other executive officers, those reports are accounted for in statute and constitutionally, in contrast to the type of writings we dealt with in State ex rel. Steffen. There is no doubt that this court would extend the note-taking privilege to the governor were he to seek it. Nor is there any doubt that this court would recognize a deliberative-process privilege applicable to the governor were he to request it. Instead, he has asked for the moon. And this court has given it to him — the governor emerges from this case with a communications privilege grossly out of scale with his own responsibilities and with the privileges accorded the other branches of government.
The Public Interest
{¶ 113} The majority writes:
*389{¶ 114} “We agree with the unassailable premise established in Nixon, and reiterated in federal and state case law, that the public interest is served by allowing a chief executive officer of a state or the federal government to receive information, advice, and recommendations unhampered by the possibility of compelled disclosure of every utterance made, and every piece of paper circulating, in the governor’s office.”
{¶ 115} It may be an unassailable premise that every utterance or paper scrap from the governor’s office should not be made public, but that is a premise wholly irrelevant to this case. Senator Dann is not asking for every utterance or paper scrap. Thus, we do not need to create from whole cloth an overarching, all-powerful executive privilege to achieve a modicum of executive privacy.
{¶ 116} The statements in Nixon regarding the importance of candor in presidential decisionmaking make more sense within the context of that case. There, recorded conversations were at issue. If conversations were fair game for public disclosure, people interacting with the governor might indeed feel checked in their speech for fear of saying something inappropriate. Here, we are dealing with documents — reflective, written communications from the governor’s staff and the heads of state agencies. Is it “unassailable” that seasoned public officials cannot be candid with each other in conducting the public’s business if their written communications might be revealed to the public? What is more likely is that public officials would be a little more reflective, careful, and thoughtful before circulating a letter or e-mail. It also means that they would be careful not to suggest what otherwise would be foolish, unwise, or politically motivated decisions, or decisions that violate statutes or regulations.
{¶ 117} The majority exempts the governor from one of this state’s clearest guiding principles, open government, on the basis of vague conclusions about human behavior. Can we really know whether the quality of gubernatorial advice would suffer without the creation of a brand new privilege? Could it be that a governor might be more inclined to take good advice if he knows that the public will one day see that he was offered it?
{¶ 118} Certainly, reasonable minds could differ on the question. The point is that we need not answer it. Instead of speculating, we should simply read the Public Records Act. We must not turn our backs on our Constitution, laws, and history based on conclusory assumptions about the way people might behave.
{¶ 119} However, if this court must travel down the road of speculation, we should face the practical implications of the privilege. With the gubernatorial-communications privilege as defined by this court, every memorandum in the executive branch will read, “To: The Governor,” whether it is intended for the governor’s eyes or not. Just adding the governor’s name to a document will cloak it in secrecy. True, this court does enunciate a test for determining *390whether the privilege applies to specific documents. But anyone who requests a document under the Public Records Act can now be forced by the governor to pursue a difficult legal battle to retrieve it. The act is designed to make it easy for citizens to learn about their government. The majority has made it easy for the governor to thwart that intent.
{¶ 120} Through its requirement of a “particularized need” on behalf of the requester, this court has essentially slammed the door on open government as it pertains to the governor. In this case, since Senator Dann is not seeking records on behalf of a committee of the General Assembly, he will be found wanting in regard to a particularized need. The same would be true for any other of Ohio’s 11 million citizens seeking such information. More astounding is the requirement that state and federal prosecutors, law-enforcement agents, the inspector general, and even committees of the General Assembly would be required to file a complaint for a writ of mandamus and persuade a court that they have a particularized need before being able to review documents when the governor asserts the privilege.
{¶ 121} Finally, in addition to shielding the governor from the operation of our Constitution, statutes, and long-established common law, the majority today exempts the governor from this court’s Rules of Civil Procedure. Without the ability to ask any executive branch functionary any question pertaining to documents, the particularized need becomes even more difficult to prove.
{¶ 122} With documents under guard by the governor, many things will remain secret that are the public’s business. The public will have to rely on leaks, or even illegally disclosed information, to have an understanding of what government is really up to. We are never well served if Ohio citizens must rely on leaks and off-the-record comments from unknown sources to disclose the important activities of government that affect our lives. Continuing to require that all records be public far better serves our interests. We need not rely on political spin — the documents are what they are, and they speak for themselves.
{¶ 123} The majority writes that “[t]he gubernatorial-communications privilege protects the public by allowing the state’s chief executive the freedom that is required to make decisions.” The idea that the governor seeks this privilege and that the majority undertakes this judicial grant for the good of the public is inconceivable. This public records request relates to a serious state government scandal, and the factors that brought about the scandal — secrecy, unaccountability, and inside dealing — are the “privileged” matters that this court would shield from public view.
{¶ 124} This whole imbroglio arises from cynicism about government. What we have here is a small group of people using government and its resources to enrich themselves or their friends. It started when one person on the fringes of *391state government, with the help of friends inside government, maneuvered a pot of money in the workers’ compensation system to a position of low-hanging fruit. The workers’ compensation system is a grand and noble idea, based in our Constitution, to compensate people hurt in the workplace. The people involved in this scandal took that grand idea and made it small, using the fund as a 50-million-dollar hog trough.
Gittes & Schulte, Frederick M. Gittes, and Kathaleen B. Schulte, for relator. Jim Petro, Attorney General; and Porter, Wright, Morris & Arthur, Kathleen M. Trafford, Bryan R. Faller, and Anne M. Hughes, for respondent. Jeffrey M. Gamso and Carrie L. Davis, in support of relator for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc. Scott A. Pullins, in support of relator for amicus curiae Ohio Taxpayers Association.{¶ 125} Now the governor, like Nixon, parlays the philosophical power of his office into a shameless attempt to shield himself from scrutiny. Ultimately, whatever financial impact this scandal has on the accounts at the Bureau of Workers’ Compensation will be absorbed. But today, the majority has crafted a lingering monument to bad government. For the first time in our history, Ohio governors will be free to operate in the dark.