Jerry Brown is in the running for governor again and talking plenty about his first two-term go-round in the office, from 1975 to 1983. “The last time there was real creativity in state government was when I was governor,” he said earlier this year.
Fair enough. Let’s say you’re a researcher or a reporter or just a member of the public who wants to learn more about all that creativity. The obvious place to turn to would be the records of his first governorship. These papers are housed, conveniently for us Angelenos, at the University of Southern California’s East Library, a big warehouse just east of the 110 Freeway on South Hope Street. Brown’s papers include more than 2,000 cartons packed with everything from female admirers’ cards to detailed files on Proposition 13 (one of the creative things that happened while he was governor).
But getting your hands on them isn’t all that easy. You and I can’t see Brown’s records unless we get his written permission first. That was his choice, and that’s the way it will be for the foreseeable future -- for 50 years from the end of his administration (which would be 2033) or until his death, whichever period is longer.
Moreover, Brown’s rules also apply to any other governor who wants to take advantage of them. And guess what? They all do.
There’s a certain irony here. Brown was the California governor who, in 1975, finally signed a law that made gubernatorial papers public records. But after he left office, he fought an extended legal battle with March Fong Eu, the then-secretary of state, over exactly what “public” meant. Eventually a 1988 law forced California governors from thence forward to turn their records over to the state archives but allowed them to maintain Brown’s access rules.
The 50-years-or-death rule gives governors the kind of control over their legacies that presidents can only envy. The public has the right to obtain White House records beginning five years after a president’s administration ends. Former presidents are permitted to restrict access to certain sensitive material -- but only for a period of 12 years after they leave office.
“California law on this makes absolutely no sense at all, particularly when you compare it to the federal model,” said Peter Scheer, executive director of the First Amendment Coalition. “And when you particularize, in a case like Brown, what could be more relevant to his bid to be governor again than the history of his two earlier terms as governor?”
In a way, California’s 50-years-or-death rule amounts to theft of public property. “Governors are not allowed to take state cars or furniture as ‘personal’ when they leave office,” said then-state archivist John Burns in 1988 during the debate over legislation that produced the rule. “State documents are just as important and just as valuable.”
To be fair, the law on gubernatorial papers adheres in spirit to what historian Chris Kuzak, an expert on public records in California, calls a “very ugly tradition” of governors in this state treating public records as personal property. Gov. John Weller, a scandal-plagued chief executive for two years in the 1850s, refused to turn over his records to the Legislature, which was investigating the conduct of Indian wars in Mendocino County. An assemblyman from El Dorado accused Weller of keeping “what belongs to the State and to the archives of the Government,” according to Kuzak’s research.
For most of California’s first century, gubernatorial papers just disappeared. According to the Secretary of State’s Office, complete administrative records exist for only three of the 29 governors that served from statehood until the mid-20th century. California is hardly alone in its failure to preserve history. Most states don’t have rules or procedures for gubernatorial papers, says Donald Linky, director of a Rutgers University program devoted to study of the role of governors in all 50 states.
In the second half of the 20th century, California governors were more careful about preserving papers. Earl Warren (governor from 1943 to 1953) voluntarily did the right thing. He gave his papers to the state archives with only one caveat: that certain files he deemed confidential be sealed for the relatively short period of 10 years after his term ended.
Too bad his example wasn’t followed. Ronald Reagan’s papers went to the Hoover Institution at Stanford, and Pat Brown (Jerry’s father) sent his to the Bancroft Library at UC Berkeley -- but each maintained that the records were his personal property and only granted access by permission.
There was no law to contradict them or even to force them to maintain the records. Even the California Public Records Act, signed by Reagan in 1968, specifically exempted “records in the custody of or maintained by the Governor or employees of the Governor’s office” from disclosure. That exemption was eliminated by the 1975 Legislative Open Records Act, signed by the newly elected governor, Jerry Brown.
But when Brown left office, he took custody of his papers and sent them to USC. Arguing that gubernatorial records were now indisputably public, Secretary of State Eu demanded they be returned to the state archives, which were under her control. Brown’s counter-argument was that the 1975 law only applied to a governor’s records while that governor was in office; once a governor left office, he should be able to do what he pleased with his records.
The ensuing fight focused primarily on physical custody of the papers (whether they would be at USC or in the archives). The 1988 compromise legislation that ended the tug-of-war permitted Brown and then-Gov. George Deukmejian to house their papers wherever they liked but required future governors to send theirs to the state archives. And the same legislation, without much explanation or debate, enshrined Brown’s access deal -- 50 years or death -- as the law for future governors.
Since then, every former governor -- Brown, Deukmejian, Pete Wilson and Gray Davis -- has chosen to exercise his rights to control access to his papers. Archivists and representatives of the governors say they generally grant requests for access, as did Reagan and Pat Brown (If that’s true, I may be an exception. My own request for broad access to Jerry Brown’s papers -- filed in August -- has yet to receive a response.)
Even if most requests are granted, restricting access in this way is wrongheaded. The people -- who decide which candidates hold office, and who also pass laws themselves through the initiative process -- need to know what has gone on in previous administrations and is going on in the current one. Applying Warren’s rule of a 10-year restriction on some papers is probably warranted, but after that, governors’ papers should truly be public property. The law should be changed.
In the meantime, Brown should immediately open his records without restrictions. If he wants to run in part on his experience as governor, the public, the media and his political opponents need to be able to scrutinize that record easily.
Consider this: If current law and practice survive, Brown could serve two more terms as governor, leaving office at the end of 2018 at age 80, and his first-administration papers still wouldn’t be freely accessible for at least another 15 years. By then, of course, it would be a little too late for voters to get the goods on just how creative he was back in the day.
Joe Mathews, a contributing writer to Opinion, is a fellow at the New America Foundation.