Columns written for the Berkeley Daily Planet newspaper, Berkeley, CA
Berkeley Daily Planet

THE JERRY BROWN RECORD ON PUBLIC RECORDS

January 28, 2010

[Note: this column has been slightly updated from the original to correct a minor timeline error]

We have long recognized current California Attorney General Jerry Brown as the great artful dodger of our time, more skilled than most at being able to avoid the political consequences of his various positions and official actions.

28 years ago, at a time when then-California Governor Jerry Brown was attempting to make the jump to the office of United States Senator, a California journalist summed up Mr. Brown’s gubernatorial career with words that are the mirror image of his tenure as mayor of the City of Oakland or as Attorney General:

“Nearly eight years after becoming governor, Jerry Brown remains an ideological free agent. Like a particle in high energy physics, he always seems to transform himself before he can be identified. … Unfortunately, his personality sometimes undermines his achievements. Too often Jerry starts out in one direction with great fanfare, has second thoughts, and ends up following an entirely different course, all the while pretending he never changed his initial position. And while this sort of zero-based thinking may suit a philosopher, real people with real problems inevitably demand more programmatic clarity from their political leaders, as well as a greater commitment to following through on last year’s good ideas.”
Roger Rapoport
“California Dreaming: The Political Odyessy of Pat & Jerry Brown”
Nolo Press

But while we’ve always known that Mr. Brown was able to reverse his political field at a moment’s notice—running off in the opposite ideological direction when the winds of change blow more favorably that way—we did not realize until recently that he was able to do so without political consequences largely because he is so good at covering his tracks.

Last week, the extent of Mr. Brown’s extraordinary ability to hide his own history has begun to come to light.

It would seem to be both logical and self-evident that with few exceptions for privacy purposes, the papers, records, and documents generated by a California governor in the course of their public duties ought to belong to the public. But in a January 21 Oakland Tribune/Contra Costa Times article entitled “Little-Known Law Is Blocking Path To Jerry Brown's Papers,” Inside Bay Area reporter Steven Harmon showed how Jerry Brown managed to carve out an exception to that public records policy just for himself and his gubernatorial administration.

Mr. Harmon wrote that in 1988, five years after he left office as California governor, Mr. Brown engaged in a legal/political battle with the office of the California Secretary of State over who should have custody over the Brown gubernatorial records—the office of California State Archives, or Mr. Brown himself.

The California State Legislature decided the matter by inserting a new provision in the California Public Records Act that required the transfer of all California gubernatorial records to the state archives. All gubernatorial records, that is, except for “public records or other writings in the direct custody or control of any Governor who held office between 1974 and 1988” (California Government Code Section 6268). Records generated during that period, the Tribune article explained, could be transferred by the governor “to any educational or research institution in California.” Since Mr. Brown served as California governor between 1975 and 1983, that public records exception applied almost exclusively to him.

But more importantly, Mr. Harmon wrote in his Inside Bay Area article, “(a) little-noticed provision — overlooked in the aftermath of a fight over who could have custody of governor's papers rather than who had access — provided the 50-year secrecy protection that Brown wanted.”

That provision, also included in Government Code Section 6268, provides that public access to California gubernatorial records may be restricted “for a period greater than 50 years or the death of the Governor.”

Governors can waive that public access restriction if they want to, and according to the Inside Bay Area, Mr. Brown has done so on occasion. But not for everybody. The Bay Area News group has filed a Public Records Request asking that Mr. Brown waive his Public Records Act exemption. The First Amendment Coalition has requested access to the Brown documents with no success, so far.

Responding to that request, the Inside Bay Area article quotes Jerry Brown adviser Steve Glazer as saying that Mr. Brown “is happy to grant access to the First Amendment Coalition as we have in the past. Others have been granted access.” But that’s not the point, is it? Why should Mr. Brown have the ability to deny access to any member of the public who wants to examine the public papers generated in Mr. Brown’s office during his 1975-83 term as governor?

All of this Jerry Brown public records secrecy is familiar territory to residents of the City of Oakland, of course, but with a cruel twist.

When Mr. Brown left office in 2007 after serving for eight years as mayor Oakland, there was no public battle over who should have custody of the Brown mayoral papers or who should have access. He simply didn’t turn the records over to city officials on his way out the door.
“An officer exiting the organization would need to turn their records over to the city clerk,” Oakland City Clerk LaTonda Simmons told Bay Area News Group reporters shortly after Mr. Brown departed office. “I don't have them.”

Representatives of then-incoming Oakland Mayor Ron Dellums said they received no documents from the Brown Administration.

Former Jerry Brown mayoral aides told reporters in 2007 that they removed Brown mayoral documents from Oakland City Hall late in 2006, with one aide, Gil Duran, saying that he had checked with the Oakland City Attorney’s public records coordinator before doing so. The public records coordinator, Michelle Abney, denied giving permission for the Brown Administration to remove any of its documents or, in fact, even having the conversation with Brown aides.

There was also some speculation in the media in 2007 that at least some of the Jerry Brown Oakland mayoral documents were destroyed and, in fact, representatives of the City Clerk’s office later retrieved some Brown materials in a dumpster near City Hall. But these items appeared to be those that would be normally thrown away, such as duplicates of emails and letters to and from other city officials and copied to Mr. Brown, old magazines, and even printer cartridges. Nothing of historical value was found. In addition, the Oakland City Attorney’s office found a computer hard drive at City Hall that contained several hundred emails generated from Mr. Brown’s office. Other than that small cache of documents, eight years of records from the Jerry Brown years at Oakland City Hall have simply vanished from public view.

While the First Amendment Coalition is seeking access to the Brown gubernatorial documents, sadly, for a city that once held a well-deserved national reputation for progressive political activism, Oakland appears to have made no effort to either recover the Brown Oakland mayoral documents, or demand a public accounting from former Mayor Brown. After some initial stirrings back in early 2007 when the Brown Oakland document story first broke in the press, neither the Oakland City Council, the office of Oakland Mayor Ron Dellums, or the office of Oakland City Attorney John Russo—all of whom might have jurisdiction or standing in the matter—have pressed the issue with Mr. Brown. Even Media News—which sought and obtained from the Oakland City Attorney the Brown mayoral documents that were left on the hard drive—does not appear to have made a similar effort to obtain the Oakland mayoral records that Mr. Brown took away with him.

Certainly, a lawsuit against Mr. Brown could still be brought by any Oakland citizen or organization, and one hopes that someone in the city makes the effort. If nothing else, that would force Mr. Brown to personally go on the record—perhaps under oath—to account for the theft of the Brown mayoral records, something that ever the artful political dodger, he has so far been able to avoid doing.

What might be revealed if we had access to Mr. Brown’s gubernatorial and Oakland mayoral records? It’s impossible to say without seeing the records themselves. In Oakland, we might learn more information about Mr. Brown’s role in the 2003 state takeover of the Oakland Unified School District, a takeover that some say may have been fueled by a proposed development deal for valuable OUSD real estate. We might also learn more about the deals between the Brown Administration and Forest City, the uptown developers, or the Oakland Police Officers Association, deals that left Oakland in dire financial straits when Mr. Brown left office.

Meanwhile, the joint action on blocking access to his public records—once by lobbying the legislature to grant him an exception in the law, once by simply ignoring the law and taking his records with him—ought to give Californians pause as they consider giving Jerry Brown a second go-round as California governor. Common sense tells us that the usual reason people hide things is that they have something to hide.