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967 P.2d 1042, City of Colorado Springs v. White, (Colo. 1998) <br />In the cases discussed above, the courts termed the <br />privilege at issue the "executive" privilege. <br />Traditionally, the executive privilege has at least two <br />components or branches: one based in the <br />constitution and the other based in the common law. <br />See, e.g., Sears, 421 U.S. at 150 -51, 95 S.Ct. 1504 <br />(noting that executive privilege has both <br />constitutional and common law content); Vaughn v. <br />Rosen, 523 F.2d 1136, 1146 (D.C.Cir.1975) (" <br />Vaughn H "); Capital Info. Group, 923 P.2d at 34; <br />Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914, <br />924 (Md.1980); Walker & Jones, The Deliberative <br />Process Privilege, at 288 -90. The constitutionally <br />based privilege is also known as the "state secrets" <br />or "presidential communications" privilege, and is <br />based on the principle *1048 of separation of <br />powers. See United States v. Nixon, 418 U.S. 683, <br />703, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); <br />United States v. Reynolds, 345 U.S. 1, 6 -8, 73 S.Ct. <br />528, 97 L.Ed. 727 (1953); In re Sealed Case, 121 <br />F.3d 729, 736 & 742 (D.C.Cir.1997); see also <br />Walker & Jones, The Deliberative Process <br />Privilege, at 279 (noting that deliberative process <br />privilege "is a branch of executive privilege" distinct <br />from the "presidential version" of executive <br />privilege); Note, Discovery of Government <br />Documents and the Official Information Privilege, <br />76 Colum. L.Rev. 142, 142 (1976) (hereinafter, <br />"Note; Discovery of Government Documents ") <br />(discussing constitutional basis of "state secrets <br />privilege "). <br />As the United States Court of Appeals for the <br />District of Columbia (FN2) observed, in sorting the <br />different facets of the executive privilege, the <br />protection for the deliberative processes of <br />government officials generally comes from "the <br />common sense- common law privilege, i.e., the <br />recognition that the Government cannot operate in a <br />fish bowl." Vaughn II, 523 F.2d at 1146. "By <br />'common sense - common law privilege,' " the court <br />explained, "we mean what is usually referred to as <br />'executive privilege,' shorn of any constitutional <br />overtones of separation of powers." Id.; see also <br />Sears, 421 U.S. at 150 -51 & n. 17, 95 S.Ct. 1504 <br />(noting that common law executive privilege <br />protecting "the decision making processes of <br />government agencies" is distinct from <br />constitutionally based executive privilege discussed <br />in Nixon). (FN3) <br />Hence, the deliberative process privilege has often <br />been referred to as the common law executive <br />privilege. Indeed, our review of those cases which <br />Page 8 <br />discuss the common law privilege protecting the <br />deliberative processes of government reveals that <br />courts have employed several names to describe the <br />privilege. The following names have been used <br />interchangeably (if not always precisely): <br />"executive privilege," "deliberative process <br />privilege," "governmental privilege," and "official <br />information privilege." See, e.g., In re Sealed <br />Case, 121 F.3d at 736 (noting that "the most <br />frequent form of executive privilege raised in the <br />judicial arena is the deliberative process privilege "); <br />Tax Analysts v. Internal Revenue Serv., 117 F.3d <br />607, 616 (D.C.Cir.1997) (noting that deliberative <br />process privilege is "a variant of executive <br />privilege "); Wolfe v. Department of Health & <br />Human Servs., 839 F.2d 768, 773 (D.C.Cir.1988) <br />(stating that "[t]he common law discovery privilege <br />at issue is the executive or deliberative process <br />privilege "); Taxation with Representation Fund v. <br />Internal Revenue Serv., 646 F.2d 666, 676 -77 <br />(D.C.Cir.1981) (noting that deliberative process <br />privilege is "sometimes called the 'executive' or <br />'governmental' privilege "); Rodgers v. Hyatt, 91 <br />F.R.D.. 399, 405 (D.Colo.1980) (using <br />"governmental" and "deliberative" privilege <br />synonymously); Capital Info. Group, 923 P.2d at <br />34 (holding that "executive privilege ... <br />encompasses what other commentators have called <br />the deliberative process privilege" and considering <br />the terms synonymous); Times Mirror Co. v. <br />Superior Court, 53 Cal.3d 1325, 283 Cal.Rptr. 893, <br />813 P.2d 240, 248 n. 10 (Cal.1991) (noting that <br />"[t]he terms 'executive privilege' and 'deliberative <br />process privilege' refer to the same concept" and <br />using terms interchangeably); Guy v. Judicial <br />Nominating Comm'n, 659 A.2d 777, 782 <br />(Del. Super. Ct. 1995) (noting "executive privilege" <br />also referred to as "official information privilege" or <br />"deliberative process privilege "); Hamilton, 414 <br />A.2d at 920 (noting that "executive privilege" also <br />referred to as "official information privilege "); <br />Michigan Council of Trout Unlimited v. Department <br />of Military Affairs, 213 Mich.App. 203, 539 <br />N.W.2d 745, 751 (Mich. Ct. App. 1995) (noting that <br />deliberative process privilege "is sometimes called <br />the 'executive privilege' "); 26A *1049 Charles <br />A. Wright & Kenneth A. Graham, Jr., Federal <br />Practice and Procedure § 5680, at 125 (1977) <br />(stating deliberative process privilege has been <br />known by variety of names including "executive <br />privilege "); Weaver & Jones, The Deliberative <br />Process Privilege, at 279 (calling deliberative <br />process privilege a "branch of the executive <br />privilege "). <br />Copyright (c) West Group 2001 No claim to original U.S. Govt. works <br />