concurring in part and dissenting in part.
{¶ 43} For the past year, the governor has been claiming that the executive decisionmaking process would virtually collapse if the weekly reports at issue were to be released to the public. He has requested and received from this court a protective privilege that is rarely afforded to presidents. Yet in the final analysis, these records have proved to be so innocuous, mundane, and unrelated to the decisional process that the five members of the majority who originally graced the governor with a presumptive privilege have been compelled to find them unworthy of protection even though the relator has purportedly failed to meet the majority’s requirement of particularized need.
{¶ 44} The governor has seriously misrepresented the nature and import of the information contained within the disputed weekly reports in his efforts to secure an executive privilege in this case, and he should bear the inevitable consequences. The governor should not be saved by the majority’s mysterious decision to deny the writ while rejecting the governor’s attempt to invoke the privilege.
{¶ 45} In rejecting the governor’s claim of privilege as to the records submitted under seal, the majority concludes that “most, if not all, of the communications submitted by the governor are not protected by the qualified executive privilege and are therefore subject to R.C. 149.43.” See ¶ 41. Quoting from my dissent in State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, *262at ¶ 8 (“Dann v. Taft I ”), the majority now clarifies that to fall within the scope of the gubernatorial-communications privilege, “communications must rise above the merely informational, and must possess some attribute of being ‘advisory, investigatory, decisional, consultative, deliberative, or sensitive’ in nature.” See ¶ 33.1 concur in this aspect of the majority’s decision.
{¶ 46} In denying the writ, however, the majority places the proverbial cart before the horse by requiring the relator to show a particularized need for documents that are not covered by the privilege in the first place. The governor has waived any privilege with respect to communications pertaining to the Bureau of Workers’ Compensation (“BWC”), and the majority has found that the withheld documents “are not covered by the qualified executive privilege and are therefore subject to disclosure pursuant to R.C. 149.43.” See ¶ 39. Why, then, should Dann be required to show a particularized need for any of the records? It makes no sense to impose a requirement that arises only by virtue of a privilege that is not applicable.
{¶ 47} According to the majority, “Dann confined his complaint to seeking communications relating to the BWC.” See ¶ 10. Thus, the majority denies Dann’s request for a writ of mandamus because “all weekly reports relating to the BWC have previously been provided to him by the governor.” See ¶ 42.
{¶ 48} I cannot agree with the majority’s finding that Dann’s requests have been limited to information concerning the BWC. While Dann’s original complaint was primarily directed at obtaining BWC-related records, it also alleged that “[o]n June 16, 2005, the Relator made three additional written requests pursuant to the Ohio Public Records Act. The first request sought weekly memoranda and other periodic reports from James Samuel (Governor’s liaison to the BWC) and/or his predecessors to the Office of the Governor for the years 1998-2005.” In a related affidavit, which was filed with the court nine months before it decided Dann v. Taft I, Dann specifically stated, “Although the BWC scandals motivated my request, I wanted the weekly reports for all information they contained concerning state government operations whether or not they involved the BWC.”
{¶ 49} Moreover, if Dann’s requests were actually limited to records pertaining to the BWC, there would have been no controversy for the court to decide in the first instance. Long before the court decided the issue of privilege in Dann v. Taft I, the governor had waived the assertion of any privilege over weekly reports or portions thereof concerning the BWC. There was simply no need to determine in Dann v. Taft I whether a privilege attaches to those records, since the governor was no longer asserting a privilege over them. But the court did decide the issue of privilege with respect to something that was in dispute, and that something was the only weekly reports for which the governor continued to *263seek protection under the executive privilege, i.e., the weekly reports from Samuel that do not contain information relating to the BWC.
{¶ 50} Accordingly, I concur in the majority’s decision to the extent that it finds the gubernatorial-communications privilege inapplicable to the withheld reports, but dissent from its decision to deny the writ of mandamus and require Dann to reassert his request for the Samuel reports. It is pointless to insist that Dann must take still more action under R.C. 149.43 to obtain disclosure of these documents. The governor should not be afforded any further opportunity to delay the release of these public records.