By Peter Scheer
Attorney General Jerry Brown has taken the first formal steps toward
declaring himself a candidate for Governor of California. He is, or
soon will be, the deja vu candidate in a race to become the deja vu governor.
What kind of governor would Brown be? While the resumes of most
candidates provide, at best, an ambiguous guide to the policies they
would pursue if elected, Brown has a track record that is uniquely
relevant to the inquiry: the voluminous archive of gubernatorial papers
from his two terms as governor, from 1975 to 1983. In assessing
Brown’s strengths and weaknesses as a future governor, what better
place to look than the full, candid and unvarnished record of how he
governed the first time around?
Incredibly, the public has no right to view these documents, which
are stored in the library archives of the University of Southern
California. Under a 1988 amendment to California’s freedom of
information law, gubernatorial records are off-limits to the public for a period of fifty years (or
the death of the governor, “whichever is later.”) (Gov. Code Sec.
6268). The only exceptions are for speeches, extradition requests and
certain other previously public materials (which are maintained by the
Secretary of State). Brown’s gubernatorial records will remain secret
until the year 2038.
That is, unless Brown chooses to make them public.
Fifty years of secrecy for gubernatorial records is an insanely long
time to deprive the public of gubernatorial “public records,” all
created at citizens’ expense and on their behalf. California’s
half-century of secrecy is in sharp contrast to federal law. Under the
Presidential Records Act, some records of past presidents become
available to the public as soon as five years after the end of a
president’s term in office, and all records (unless classified or
subject to privilege claims) become public in twelve years. (44 U.S.C. 2201)
If Presidential records enter the public domain after twelve years,
no state can possibly justify extending confidentiality to its
ex-governors’ records for a longer time. Presidential records, after
all, are far more likely to contain sensitive information concerning
security, diplomatic relations or similar government interests. Yet
California law maintains a blackout on its gubernatorial records for an additional thirty-eight years.
Under California’s 50-year rule, most people who vote in a
gubernatorial election will be dead by the time the winner’s records
become public. Ditto for the ex-governor. Release of the records is
deferred by law to a future so distant that there will be no one left
to hold the government accountable for whatever misdeeds might be
revealed. Sadly, that may be the real point of the law.
It’s high ,time the Legislature amended the gubernatorial records law
to limit the secrecy term to the 12 years of the federal law (or less).
But whether or not that happens, Jerry Brown will be hard-pressed to
continue to seek the governorship of California while denying the press
and public access to the vast records of his first two terms in that
Brown has the discretion under the law to provide open, unrestricted access. Will he do it?
Peter Scheer, lawyer and journalist, is executive director of the First Amendment Coalition.