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 job.
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.
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