Freedom Foundation v. Gregoire , 178 Wash. 2d 686 ( 2013 )

Fairhurst, J.

¶1 We must decide whether Washington’s constitutional separation of powers creates a qualified gubernatorial communications privilege that functions as an exemption to the Public Records Act (PRA), chapter 42.56 RCW. Freedom Foundation (Foundation) sued the governor to compel production of documents under the PRA after the governor asserted executive privilege and refused to release them. The parties filed cross motions for summary judgment. The trial court resolved these motions by ruling that separation of powers principles produce a qualified gubernatorial communications privilege. Because the Foundation made no attempt to overcome this qualified privilege, the trial court granted the governor summary judgment. Finding no error, we affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶2 This case began when Scott St. Clair, a foundation employee, e-mailed the office of the governor and made a public records request for 11 specific documents. St. Clair knew the governor had claimed executive privilege and refused to produce these documents in response to other public records requests.

¶3 The governor’s staff re-reviewed each document to see if the governor could now waive the privilege without harm. The governor waived the privilege for five documents and part of a sixth document. She continued to claim privilege for part of the sixth document and five other documents. The withheld documents involved the negotiations to replace the Alaskan Way Viaduct in Seattle, the Columbia River Biological Opinion, and proposed medical marijuana legislation. With the produced documents, the governor included a privilege log and a letter from the governor’s general counsel. The privilege log and letter identified the withheld documents, their authors and recipients, and their subject matter in general terms, and explained that the governor was asserting executive privilege to protect her access to the candid advice needed to fulfill her constitutional duties.

¶4 Dissatisfied, the Foundation filed suit in Thurston County Superior Court to compel production of the documents under the PRA. Both sides sought summary judgment.

¶5 The governor asked the trial court to follow decisions from federal and other state courts and recognize an executive communications privilege deriving from the separation of powers implied in the Washington State Constitution. The governor asked the trial court to analyze the privilege claim using the three-step framework created by the United States Supreme Court in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). In Nixon’s first step, 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, because it is a communication to or from the Governor that was made to foster informed and sound gubernatorial deliberations, policymaking, or decision-making; and that production of the document would interfere with that function.” Clerk’s Papers (CP) at 237; Nixon, 418 U.S. at 713. Nixon’s second step requires the party requesting the production of documents to overcome the presumption of privilege by “demonstrating a particularized need for the documents and identifying an interest that could outweigh the public interests and constitutional interests served by executive privilege.” CP at 237; Nixon, 418 U.S. at 713. If the party makes a sufficient showing, Nixon’s third step requires the trial court to examine the documents in camera and balance the constitutional and public interests served by the privilege against the demonstrated need for the documents. See 418 U.S. at 714-15. If the need outweighs the interests served by the privilege, the trial court must order the release of the documents. The governor stressed that under Nixon, to compel production, the Foundation had to demonstrate some specific, individualized need, which the Foundation had not demonstrated.

¶6 The Foundation maintained that Washington’s spirit of open government prevented recognition of an implied executive privilege. The Foundation argued that even if the trial court recognized an executive privilege, the trial court should refuse to apply the privilege to the PRA for two reasons. First, RCW 42.56.070(1) allows only specified statutory exemptions to the PRA’s disclosure requirements and an implied constitutional privilege would not satisfy this requirement. Second, the Nixon test clashes with procedural provisions of the PRA, especially the provisions related to who has the burden to justify nondisclosure and the availability of in camera review. Based on its view of the primacy of the PRA, the Foundation refused to provide an alternative to the Nixon test to evaluate privilege claims within the context of the PRA and refused to show any need for the documents.

¶7 Based on separation of powers considerations, the trial court recognized an executive communications privilege. Given the Foundation’s failure to provide an alternative to the Nixon test, the trial court applied the Nixon test. The trial court determined that the general counsel’s letter to St. Clair had created a presumption of privilege, satisfying Nixon’s first step. The trial court ruled that the Foundation had demonstrated neither a showing of particularized need nor an interest in obtaining the documents that outweighed the public and constitutional interests served by the privilege. The trial court also ruled that RCW 42.56.070(1) incorporated constitutional privileges as an exemption to the production of documents. Further, the trial court determined that if the PRA required a specific statutory citation for executive privilege, RCW 43.06.010 provided such a citation.¹ The trial court rejected the Foundation’s request to order production of the documents and granted the governor’s motion for summary judgment.

¶8 The Foundation sought direct review, which we granted.

II. STANDARD OF REVIEW

¶9 We review a trial court’s grant of summary judgment de novo, performing the same inquiry as the trial court. Neigh. Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 715, 261 P.3d 119 (2011). Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Wash. Imaging Servs., LLC v. Dep’t of Revenue, 171 Wn.2d 548, 555, 252 P.3d 885 (2011). The parties agree that no material issue of fact exists here.

III. ISSUES PRESENTED

¶10 (1) Does Washington’s separation of powers doctrine give rise to an executive communications privilege that serves as an exemption to the PRA?

¶11 (2) Did the trial court properly determine that the executive communications privilege covered the documents at issue?

IV. ANALYSIS

A. The PRA

¶12 Initially passed as a citizen’s initiative in 1972, the PRA serves to ensure governmental transparency in Washington State. O’Neill v. City of Shoreline, 170 Wn.2d 138, 146, 240 P.3d 1149 (2010). The PRA embodies “a strongly worded mandate for broad disclosure of public records.” Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). To effectuate this mandate, the PRA directs each agency to allow public access to “all public records, unless the record falls within the specific exemptions of subsection (6) of this section, this chapter, or other statute which exempts or prohibits disclosure of specific information or records.” RCW 42.56.070(1) (reviser’s note omitted). Under the PRA, the agency bears the burden of showing that records fall within a statutorily specified exemption. Neighborhood Alliance, 172 Wn.2d at 715. To preserve the PRA’s broad mandate for disclosure, this court construes its provisions liberally and its exemptions narrowly. Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 408, 259 P.3d 190 (2011).

¶13 The Foundation maintains that RCW 42.56.070(1) requires the governor to produce the documents it seeks, stressing that neither the PRA nor any other statute recognizes an executive communications privilege.

¶14 The Foundation’s reading of RCW 42.56.070(1) fails to recognize that the governor raises a constitutional privilege. We have recognized that the PRA must give way to constitutional mandates. See Seattle Times Co. v. Serko, 170 Wn.2d 581, 594-97, 243 P.3d 919 (2010) (discussing how constitutional fair trial rights may serve as an exemption under the PRA); Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775, 808, 246 P.3d 768 (2011) (noting in dictum that the argument that constitutional provisions can serve as PRA exemptions “has force”). These decisions recognize that the constitution supersedes contrary statutory laws, even those enacted by initiative. Wash. Ass’n for Substance Abuse & Violence Prevention v. State, 174 Wn.2d 642, 654, 278 P.3d 632 (2012). If the governor has correctly ascertained that constitutional principles provide her with a privilege, the Foundation’s PRA claim must fail.

B. The Separation of Powers and Executive Privilege

¶15 We have long described the separation of powers as one of the “cardinal and fundamental principles” of our state constitutional system. Wash. State Motorcycle Dealers Ass’n v. State, 111 Wn.2d 667, 674, 763 P.2d 442 (1988). “Our constitution does not contain a formal separation of powers clause.” Brown v. Owen, 165 Wn.2d 706, 718, 206 P.3d 310 (2009). “ ‘Nonetheless, the very division of our government into different branches has been presumed throughout our state’s history to give rise to a vital separation of powers doctrine.’ ” Id. (quoting Carrick v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994)).

¶16 Our separation of powers jurisprudence guards the balance of powers between branches. While we have acknowledged the important role that separation of powers principles play in maintaining individual liberty, our separation of powers jurisprudence directly “protects institutional, rather than individual, interests.” Carrick, 125 Wn.2d at 136 (citing Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851, 106 S. Ct. 3245, 92 L. Ed. 2d 675 (1986)). This recognizes that “the damage caused by a separation of powers violation accrues directly to the branch invaded,” weakening its ability to check the other branches. Id. Consequently, we test for separation of powers violations by asking “ ‘whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another.’ ” Brown, 165 Wn.2d at 718 (internal quotation marks omitted) (quoting Carrick, 125 Wn.2d at 135).

¶17 The executive communications privilege plays a critical part in preserving the integrity of the executive branch. Courts have widely recognized that the chief executive must have access to candid advice in order to explore policy alternatives and reach appropriate decisions. Nixon, 418 U.S. at 708; Republican Party of N.M. v. N.M. Taxation & Revenue Dep’t, 2012-NMSC-026, 283 P.3d 853; State ex rel. Dann v. Taft, 109 Ohio St. 3d 364, 2006-Ohio-1825, 848 N.E.2d 472; Guy v. Judicial Nominating Comm’n, 659 A.2d 777 (Del. Super. Ct. 1995); Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980); Nero v. Hyland, 76 N.J. 213, 386 A.2d 846 (1978). These same courts have recognized that the communications privilege ensures the chief executive access to such candid advice, promoting the effective discharge of the chief executive’s constitutional duties. Nixon, 418 U.S. at 705-08; Republican Party, 283 P.3d at 866-68; Dann, 848 N.E.2d at 484; Guy, 659 A.2d at 783-84; Hamilton, 414 A.2d at 922; Nero, 386 A.2d at 853. Refusal to recognize the gubernatorial communications privilege would subvert the integrity of the governor’s decision making process, damaging the functionality of the executive branch and transgressing the boundaries set by our separation of powers doctrine. See Nixon, 418 U.S. at 708 (calling the privilege “fundamental to the operation of Government and inextricably rooted in the separation of powers”); accord Loving v. United States, 517 U.S. 748, 757, 116 S. Ct. 1737, 135 L. Ed. 2d 36 (1996) (“Even when a branch does not arrogate power to itself, moreover, the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.”); Guy, 659 A.2d at 783 (the privilege guards the “vital public interest.. . involved in the effective discharge of a governor’s constitutional duties”).

¶18 Our decision to recognize the executive communications privilege as an exemption to the PRA comports with the decisions of our sister states. Every court that has examined the executive communications privilege in light of open government laws has recognized both the privilege and its applicability to open government laws. Republican Party, 283 P.3d 853; Dann, 848 N.E.2d at 485; Guy, 659 A.2d 777. The state open government laws at issue in Republican Party,² Dann ³ and Guy⁴ shared the PRA’s purpose and language. Just as each of those courts did, we determine that constitutional concerns must trump the mandate of our open government law, and we reject the idea that this will debilitate our democracy.

Neither the Supreme Court of the United States nor state supreme courts have been persuaded by arguments similar to those asserted by relator here that the recognition of an executive privilege threatens the viability of our democratic institutions. Rather, to the extent that an executive privilege facilitates candor and open, vigorous debate in the formulation of public policy, it lubricates the decisional process.

Dann, 848 N.E.2d at 482.

¶19 The Foundation argues that the PRA raises no separation of powers concerns. It asserts that the separation of powers doctrine concerns itself with interbranch conflicts. It maintains that because the PRA empowers the people to demand information from their government, no interbranch conflict occurs and the separation of powers is not implicated. This argument fails for two reasons.

¶20 First, the Foundation’s reading ignores our separation of powers jurisprudence. While separation of powers issues may sometimes involve conflict between the branches of government, we apply the doctrine by protecting the branches themselves. The communications privilege protects the chief executive’s access to candid advice. The PRA implicates this access. The governor may assert the privilege to safeguard the integrity of the executive branch.

¶21 Second, the people effectively act as the legislative branch when they pass an initiative. “In approving an initiative measure, the people exercise the same power of sovereignty as the legislature does when it enacts a statute.” Wash. Ass’n for Substance Abuse, 174 Wn.2d at 654. The same constitutional constraints apply to both an initiative and a legislative enactment. City of Burien v. Kiga, 144 Wn.2d 819, 824, 31 P.3d 659 (2001). Essentially, attempts to force disclosure of information through the PRA involve a struggle between the legislative and executive powers. This is exactly the type of interbranch conflict the Foundation claims lies at the heart of the separation of powers doctrine.

¶22 The dissent offers three reasons why we should refuse to recognize the gubernatorial communications privilege: precedent from other jurisdictions offers little guidance, the PRA contains other exceptions rendering the gubernatorial communications privilege superfluous, and Washington’s history of open government conflicts with recognition of the privilege. We consider each in turn.

¶23 The dissent first argues that we should reject the executive communications privilege adopted in other jurisdictions based on differences in the powers of Washington’s governor and the chief executive officer in those jurisdictions. Dissent at 717-20, 721 n.16. To distinguish Washington’s office of governor from the office of president, the dissent cites the president’s expansive national security and foreign policy powers. To distinguish Washington’s governorship from the governorship in other states, the dissent argues that Washington’s office of governor is weaker than the office of governor in other states.

¶24 The dissent’s attempts to distinguish the governorship from the presidency must fail because the executive privilege does not arise from the scale of the office at issue. It arises from executive power itself. “ Tt is generally acknowledged that some form of executive privilege is a necessary concomitant to executive power.’ ” Dann, 848 N.E.2d at 481 (internal quotation marks omitted) (quoting Vitauts M. Gulbis, Annotation, Construction and Application, Under State Law, of Doctrine of “Executive Privilege,” 10 A.L.R.4th 355, 357 (1981)). Just as the federal constitution vests executive power in the president, our state constitution vests executive power in the governor. Compare U.S. Const, art. II, § 1, with Wash. Const, art. Ill, § 2. These vesting clauses provide both offices with the executive communications privilege.

¶25 Regardless, the dissent is incorrect in asserting that the president’s national security and foreign policy powers justify the existence of the presidential communications privilege. The Nixon Court signaled that the communications privilege was broader than the president’s need for secrecy in foreign policy or military matters, implicitly ruling out those powers as the wellspring of the privilege. Nixon, 418 U.S. at 710-11. The gubernatorial communications privilege, like the presidential communications privilege, arises from the need for the chief executive to access differing and possibly unpopular viewpoints in order to formulate policy.⁵ Washington’s governor requires this access to unpopular viewpoints or candid discussion no less than the president does.

¶26 Likewise, the strength or weakness of a governorship has no effect on the existence of the communications privilege. If the division of the executive branch into multiple elected offices distinguishes a strong from a weak governorship, then the dissent correctly identifies the New Jersey governorship as a strong one. N. J. Const, art. V, § IV. For that matter, so is the governorship of Delaware. Del. Const, art. Ill, § 9. However, as in Washington, multiple elected offices comprise the executive branches in Ohio and New Mexico. Ohio Const, art. Ill, §§ 1, 3; N.M. Const, art. V, § 1. Each of these states, whether possessing a weak or strong executive, has recognized the executive communications privilege. Again, it is the vesting of executive power within the chief executive officer that creates the privilege, not the scope of the office.⁶

¶27 The dissent also claims that the PRA contains exemptions that eliminate the need for an executive privilege. Dissent at 718, 722. The dissent offers no reasoning or evidence that any of these other privileges provides sufficient protection to encourage candid advice. For example, the most topical of these exemptions, the exemption for preliminary drafts and similar materials, ends when the policy is implemented, Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 257, 884 P.2d 592 (1994). The communications privilege continues to shield the governor’s conversations after this exemption ends, providing additional incentive to provide candid advice, the constitutional rationale for the privilege.

¶28 Further, we refuse to displace constitutional protections with statutory ones. For example, fundamental freedoms are given constitutional protections precisely because doing so protects them from mere changes in the law. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943). As discussed above, the separation of powers doctrine plays an important role in preserving individual rights by ensuring strong branches that can effectively check one another. We must guard these structural protections in the same manner that we protect the individual rights themselves. Displacing the constitutional protections with statutory ones is incompatible with this duty.

¶29 Finally, the dissent argues that the Washington experience argues against the recognition of the gubernatorial communications privilege. Contrary to the dissent’s assertion that “[o]ur state has functioned quite well for over 100 years without this privilege,” the record reflects that other governors have, in fact, invoked the privilege to shield documents from disclosure. Dissent at 719; CP at 27. Our state has functioned well with the existence of the privilege. Further, we note that the experience in other states demonstrates that a gubernatorial communications privilege may coexist with a strong commitment to open government. See, e.g., Dann, 848 N.E.2d 472; Guy, 659 A.2d 777.

C. The Qualified Gubernatorial Communications Privilege

¶30 Every court that has considered the issue has refused to recognize an absolute privilege. Nixon, 418 U.S. at 706-07; Republican Party, 283 P.3d at 868; Dann, 848 N.E.2d at 485; Guy, 659 A.2d at 785; Hamilton, 414 A.2d at 925; Nero, 386 A.2d at 853. Separation of powers concerns recognize the executive’s need to keep some conversations confidential. Separation of powers concerns also dictate that the courts may override that confidentiality when it conflicts with “the court’s duty to see that justice is done in the cases which come before it.” O’Connor v. Matzdorff, 76 Wn.2d 589, 600, 458 P.2d 154 (1969); see Nixon, 418 U.S. at 711-13. These contrasting constitutional requirements define the limits of the gubernatorial communications privilege in several ways.

¶31 Above all, the constitutional communications privilege applies only to communications “ ‘authored’ ” or “ ‘solicited and received’ ” by the governor or aides with “ ‘broad and significant responsibility for investigating and formulating the advice to be given’ ” to the governor. Judicial Watch, Inc. v. Dep’t of Justice, 361 U.S. App. D.C. 183, 365 F.3d 1108, 1114, 1116 (2004) (quoting In re Sealed Case, 326 U.S. App. D.C. 276, 121 F.3d 729, 752 (1997)). The executive communications privilege must extend beyond the governor to serve these purposes. In re Sealed Case, 121 F.3d at 747-52; Judicial Watch, 365 F.3d at 1114-17. Senior advisors must have the ability to obtain frank advice to help the governor shape policy decisions; extending the privilege away from the governor assures that these advisors will receive candid opinions. Judicial Watch, 365 F.3d at 1115. However, “the demands of the privilege become more attenuated the further away the advisors are from the [chief executive] operationally.” Id. The privilege’s justifications fade when dealing with aides unlikely to ever provide policy advice. Id. Accordingly, the privilege encompasses communications not only with the governor, but with senior policy advisors as well.

¶32 Second, the communication must occur “for the purpose of fostering informed and sound gubernatorial deliberations, policymaking, and decisionmaking.” Dann, 848 N.E.2d at 485. Like any other privilege, we must limit the gubernatorial communications privilege to its purposes, here ensuring the governor’s access to frank advice in order to carry out her constitutional duties. See Adcox v. Children’s Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15, 31, 864 P.2d 921 (1993). The privilege does not exist to shroud all conversations involving the governor in secrecy and place them beyond the reach of public scrutiny. Only those communications made to inform policy choices qualify for the privilege.

¶33 Finally, the governor must provide a record that allows the trial court to determine the propriety of any assertion of the privilege. “ ‘[I]t is the judiciary (and not the executive branch itself) that is the ultimate arbiter of executive privilege.’ ” Republican Party, 283 P.3d at 868 (alteration in original) (quoting Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53, 103 (D.D.C. 2008)). Judicial inspection of material to determine the applicability of the privilege intrudes upon the separation of powers by breaching the confidentiality of the communications. Nixon, 418 U.S. at 713-14; Dann, 848 N.E.2d at 486; Hamilton, 414 A.2d at 926. Respect for a coordinate branch of government therefore requires us to provide some deference to a governor’s decision that material falls within the ambit of executive privilege. Dann, 848 N.E.2d at 486. But the judicial branch has the ultimate responsibility to determine the validity of a privilege claim. To assist the courts in making this determination, the governor must provide a privilege log listing the documents involved, the author and recipient, and a general description of the subject matter such that the court can evaluate the propriety of the governor’s claims. If the governor provides this log, the courts must treat the communications as presumptively privileged.

¶34 Because the privilege is qualified, the requesting party may attempt to overcome the presumption by showing a particularized need for the materials. If the party makes this showing, the trial court must evaluate the documents in camera. The trial court must determine whether the requesting party’s need for the material outweighs the public interests served by protecting the chief executive’s access to candid advice for purposes of formulating policy; if so, it must release the documents. The federal courts have recognized that the demands of both criminal and civil trials may serve to overcome the privilege. Nixon, 418 U.S. at 712-13; Sun Oil Co. v. United States, 206 Ct. Cl. 742, 514 F.2d 1020, 1024 (1975); Dellums v. Powell, 182 U.S. App. D.C. 244, 561 F.2d 242, 247 (1977). Other state courts have suggested that “authorized legislative committee [s] or grand jur[ies]” may also be able to make the necessary showing. Dann, 848 N.E.2d at 486. We express no opinion on whether these or any other justifications would serve to overcome the presumption of privilege for the simple reason that the Foundation refused to make any attempt to overcome the presumption by refusing to demonstrate a specific need for the documents.⁷

¶35 The dissent urges us to adopt a modified version of the Nixon test. The dissent claims that we should follow the lead of the New Mexico Supreme Court and eliminate Nixon’s requirement that a requesting party overcome any assertion of privilege with a showing of particularized need. This test is inconsistent with the constitutional underpinnings of the gubernatorial communications privilege. Separation of powers considerations require us to abstain from examining material the governor has determined is privileged unless the requesting party demonstrates some particularized need for the material, for judicial examination necessarily intrudes into the executive branch’s need for confidentiality. Dann, 848 N.E.2d at 486. The fact that the requesting party is seeking the material under the PRA is irrelevant to this constitutional analysis. Guy, 659 A.2d at 785; Killington, Ltd. v. Lash, 153 Vt. 628, 635, 572 A.2d 1368 (1990). Holding otherwise elevates an exercise of the legislative power above the constitution, which is anathema to our system of law. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L. Ed. 60 (1803).

D. The Gubernatorial Communications Privilege Applied

¶36 Having defined the boundaries of the gubernatorial communications privilege, we must now apply them to the communications at issue in the Foundation’s PRA request. Our review of the record shows the gubernatorial communications privilege applies to the materials the Foundation seeks.⁸

¶37 The governor provided the Foundation, and the trial court, with a privilege log and a letter explaining the log. The letter and log identify the documents at issue, the author and recipient of each document, and their subject matter in terms sufficient to determine the applicability of the privilege claims. Four of the documents were directed to the governor herself. One of these is the redacted document; apparently the governor chose to waive privilege for all but her handwritten comments on a decision document. The governor authored the entirety of one of the other documents. The final document consists of an e-mail written by the governor’s executive assistant to the governor’s executive policy staff. This document also incorporated questions the governor wrote and directed her assistant to forward on to the policy staff and some of their responses to these questions. The letter from the governor’s counsel states that the governor asserted privilege to assist in the fulfillment of her constitutional duties. The gubernatorial communications privilege we have described above covers these documents. The communications were communications authored or solicited and received by the governor or senior advisors who had broad discretion over policy matters. They concerned policy matters. The governor’s assertion of privilege therefore creates a presumption of privilege, allowing the governor to withhold the documents absent a sufficient showing by the Foundation.⁹

¶38 The Foundation refused to make any type of showing of need that would require the court to determine whether its interest in obtaining the documents outweighed the public interest in the governor’s access to candid advice. Accordingly, the trial court did not err in determining that the Foundation could not compel the governor to disclose the documents. Because the Foundation did not prevail, here or at trial, we affirm the trial court’s decision to deny the Foundation attorney fees under RCW 42.56.550(4).

V. CONCLUSION

¶39 The people delegated supreme executive power to the governor when they ratified the constitution. The gubernatorial communications privilege, delegated along with supreme executive power and vested in the governorship, cabins the right to demand information through open government laws. Republican Party, 283 P.3d at 856. The PRA cannot override this constitutional delegation of power; any such attempt must come through constitutional amendment. Like the trial court below, we conclude that the governor may invoke the gubernatorial communications privilege in response to a PRA request.

¶40 We affirm.

Owens, Wiggins, and González, JJ., and Chambers, J. Pro Tem., concur.

1 This provision describes the powers and duties of the governor and authorizes the governor to exercise the powers “prescribed by the Constitution.” RCW 43.06.010.

2 In Republican Party, the court began by examining several provisions of its state constitution and the Inspection of Public Records Act, N.M. Stat. Ann. §§ 14-2-1 to -12, which is very similar to Washington’s constitution and the PRA. Republican Party, 283 P.3d at 856, 859. Ccompare N.M. Const, art. II, § 2 (“All political power is vested in and derived from the people: all government of right originates with the people, is founded upon their will and is instituted solely for their good.”), with 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.”); compare N.M. Stat. Ann. § 14-2-5 (“a representative government is dependent upon an informed electorate,” and “all persons are entitled to the greatest possible information regarding the affairs of government”), with Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 251, 884 P.2d 592 (1994) (“The stated purpose of the [PRA] is nothing less than the preservation of the most central tenets of representative government.”); compare N.M. Stat. Ann. § 14-2-1(A) (“Every person has a right to inspect public records” subject to enumerated exemptions.), with RCW 42.56.070 (agencies must make public records available unless exempted by the PRA).

3 The Dann court began its analysis by describing the Ohio Public Records Act, Ohio Rev. Code Ann. § 149.43, and the state’s commitment to openness. Dann, 848 N.E.2d at 477-78. “It has long been the policy of this state, as reflected in the Public Records Act and as acknowledged by this court, that open government serves the public interest and our democratic system.” Id. at 477. The court noted that the Ohio Public Records Act “ ‘is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records.’ ” Id. (quoting Gilbert v. Summit County, 104 Ohio St. 3d 660, 2004-Ohio-7108, 821 N.E.2d 564, 566); accord Bainbridge Island Police Guild, 172 Wn.2d at 408 (we construe the PRA’s provisions broadly and exemptions narrowly).

4 The Guy court noted that lawmakers intended the Delaware Freedom of Information Act, Del. Code Ann. tit. 29, §§ 10001-10006, “to ensure government accountability, inform the electorate and acknowledge that public entities, as instruments of government, should not have the power to decide what is good for the public.” 659 A.2d at 780 (citing Del. Solid Waste Auth. v. News-Journal Co., 480 A.2d 628, 631 (Del. 1984)); accord ROW 42.56.030.

5 We must disagree with the dissent’s contention that the gubernatorial communications privilege simply protects “inflammatory” memoranda or advice that the governor embark upon “illegal courses of action.” Dissent at 720. First, we cannot say that these statements reflect the due respect we owe to a coordinate branch of government. Second, the gubernatorial communications privilege exists to ensure that the governor has access to “moments of speculation, venturesome alternatives, or retractable words.” Killington, Ltd. v. Lash, 153 Vt. 628, 637, 572 A.2d 1368 (1990). Effective discharge of the governor’s powers requires consideration of all sides of the issues confronting Washington. To do so, the governor must consider bad ideas, or ideas that are unpopular, either with segments of the electorate or the electorate as a whole. It is the governor’s access to these types of communications that the privilege protects. Nixon, 418 U.S. at 705-08; Republican Party, 283 P.3d at 866-68; Dann, 848 N.E.2d at 484; Guy, 659 A.2d at 783-84; Hamilton, 414 A.2d at 922; Nero, 386 A.2d at 853.

6 The dissent argues that Babets v. Secretary of Executive Office of Human Services, 403 Mass. 230, 526 N.E.2d 1261 (1988) demonstrates that some states have rejected the executive communications privilege. The term of executive privilege is often used interchangeably with two different subdoctrines: the deliberative process privilege and the executive communications privilege. In re Sealed Case, 326 U.S. App. D.C. 276, 121 F.3d 729, 737-40 (1997). The deliberative process privilege is a common law doctrine that covers general predecisional discussions among governmental officials. Id. at 737-38. The executive communications privilege is constitutionally based and it covers communications by and to the governor and certain aides, as discussed below. Id. at 738-40. Babets involved a request for deliberations occurring as part of an agency decision making process. As such, it considered the deliberative process privilege, not the gubernatorial communications privilege. Babets, 403 Mass, at 231-32. While the Babets court did consider and reject constitutional arguments, those arguments have no viability in the context of the deliberative process privilege. See id. at 233-34. Babets is inapposite to the question before us today.

7 Chief Justice Madsen’s concurrence advocates our including more guidance on the executive privilege we recognize. The parties have not presented argument on the contours. Future cases, if any, will provide the appropriate opportunities. We should not make these decisions in a vacuum.

8 This case concerns an assertion of executive privilege made by a sitting governor in response to a PEA request made during her term of office. The assertion of privilege led to a suit, trial, and appeal for which we heard argument during that same term of office. As the dissent notes, some question exists about the ability of a former governor to assert the gubernatorial communications privilege. Dissent at 726-27. However, the facts of this case do not offer the chance to resolve this question. Consequently, we defer answering the question of a former governor’s authority to assert the gubernatorial communications privilege until the appropriate case presents us with the opportunity to do so.

9 The governor’s chief counsel made the assertion of privilege on behalf of the governor, both in response to the Foundation’s PEA request and then under penalty of perjury during the trial below. While the privilege belongs to the governor, dissent at 725-26, we cannot say that this is not an assertion of privilege by the governor. An appropriate official has invoked the privilege on behalf of the governor. See New Eng. Coal. for Energy Efficiency & Env’t v. Office of Governor, 164 Vt. 337, 344-45, 670 A.2d 815 (1995).