The opinion
COMBS, J.,
concurring in part, dissenting in part.
T1 While I concur with the majority's determination that the Governor possesses a *1280 qualified executive privilege based upon her inherent powers as Governor under the Oklahoma Constitution, I write separately to specify the nature of the privilege and to more clearly highlight its boundaries. The majority's use of the label "deliberative process privilege" to describe the constitutional privilege that shields the Governor's communications with her advisors blurs the line between distinct facets of executive privilege in a manner likely to cause confusion in the future.
{2 The majority describes in detail the unique constitutional role of the Governor and the importance of candor in her communications with her advisors. The executive privilege that protects such candor is built in part upon the decision of the Supreme Court of the United States in Umited States v. Nixon, 418 U.S. 688 , 94 S.Ct. 3090 , 41 LEd.2d 10839 (1974) (superseded by statute on other grounds), which the majority favorably quotes at several points when it compares the duties and powers of the Governor to those of the President. The qualified executive privilege described by the Court in Nizon has also been labeled the "chief executive communications privilege" in order to distinguish it from the larger category of privileges that may fall under the umbrella of executive privilege. See Matthew W. War-nock, Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials, 35 Cap. U.L.Rev. 988, 984-85 (2007).
3 Such specificity is necessary in order to distinguish the chief executive communications privilege from the common-law-based deliberative process privilege theory relied upon by the trial court in this cause and adopted by the majority. The former is specific to the chief executive and rooted in the Constitution while the latter applies more generally to government actors in the executive branch and originated at common law. Both were originally federal doctrines that have been adopted to varying degrees by the states. The difference was thoughtfully set out by the United States Court of Appeals for the D.C. Cireuit in In re Sealed Case, 121 F.3d 729 (D.C.Cir.1997), where the court stated:
[while the presidential communications privilege and the deliberative process priv-lege are closely affiliated, the two privileges are distinct and have different scopes. Both are executive privileges designed to protect executive branch deci-sionmaking, but one applies to decision-making of executive officials generally, the other specifically to decisionmaking of the President. The presidential privilege is rooted in constitutional separation of powers principles and the President's unique constitutional role; the deliberative process privilege is primarily a common law privilege.
T 4 By relying heavily upon Nixon and the Governor's unique constitutional role and powers, while at the same time determining that it is the common-law-based deliberative process component of executive privilege that controls here, the majority engages in a blending of two distinct legal theories of executive privilege. The Supreme Court of Alaska, in Gwich'in Steering Committee v. State, Office of the Governor, succinetly described the difference:
[wle stated in Capital Information Group v. State, Office of the Governor that we considered the terms "executive privilege" and "deliberative process privilege" to be synonymous for purposes of that discussion. But the two terms are not identical. Instead, the deliberative process privilege is a "branch" of a broader group of governmental privileges. The roots of the deliberative process privilege lie in the common law; it protects the mental processes of government decisionmakers from interference, not constitutional notions of separation of powers.
10 P.3d 572, 579 (Alaska 2000) (emphasis added) (footnotes omitted). The majority opinion appears to supply a constitutional basis for the deliberative process privilege stemming from the separation of powers doctrine, which is a significant departure from the federal precedent responsible for both distinct branches of executive privilege. Further, the deliberative process privilege, as the In re Sealed Case court noted, can apply to other executive branch entities besides the chief executive, and the *1281 majority's blending of the two ideas makes it difficult to distinguish where the Governor's constitution-based executive privilege ends and the deliberative process privilege begins.
I 5 Recognizing a clear distinction between the two doctrines helps prevent such confusion. While the chief executive communications privilege may be more all-encompassing with regards to documents and more difficult to surmount, it is also limited in nature and less broadly applicable than the deliberative process privilege. Most importantly, the chief executive communications privilege should not be construed so as to extend privileged status to all communications that may be made to the Governor. The court in In re Sealed Case considered this issue as well, and reached the following conclusion:
[wle believe therefore that the public interest is best served by holding that communications made by presidential advisers in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President. Given the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources, the privilege must apply both to communications which these advisers solicited and received from others as well as those they authored themselves. The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential adviser's staff, since in many instances advisers must rely on their staff to investigate an issue and formulate the advice to be given to the President. We are aware that such an extension, unless carefully civeum-seribed to accomplish the purposes of the privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege that is bottomed on a recognition of the unique role of the President. In order to limit this risk, the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President's decision-making process is adequately protected. Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.
121 F.3d at 751-52 (emphasis added) (internal citations omitted).
1 6 Complete candid objectivity from advis-ors may call for great deference from the courts, Nizon, 418 U.S. at 706 , 94 S.Ct. 8090 , but the same cannot be said for potentially unsolicited advice and lobbying directed at the Governor that comes from outside the office of the chief executive, even if such advice factored into the decisional process on an issue. To allow otherwise would make the privilege overbroad and allow it to grow beyond its role in protecting the unique role of the chief executive.
T7 In conclusion, I agree that the Governor's communications with her advisors are subject to a qualified executive privilege that has its basis in the Governor's inherent powers and the Constitution. However, that privilege is distinct from the common-law-based deliberative process privilege and I write separately to stress that I disagree with the majority's decision to blend these two branches of executive privilege into a hybrid entity.