We noted last year that when the Governor asks the Supreme Court to recommend clemency for a person convicted of two or more felonies, which is a constitutional prerequisite to a pardon or sentence commutation for that person, the court’s default position is secrecy for the files the Governor submits.  Yesterday, the court released for comment a proposal that for the most part reaffirms that policy.

A proposed administrative order says the court has “reassessed whether clemency files . . . should be regarded as confidential and withheld from public inspection” and also says “this policy of confidentiality must be revised to account for the public’s legitimate interest in understanding how the court exercises its responsibilities under [the constitution].”  (See yesterday’s entry on this docket.)

Despite the “public’s legitimate interest,” however, the proposed revision still treats the Governor’s clemency files differently from most other documents submitted to a court.  Instead of requiring the Governor at the outset to justify keeping documents confidential, as would be consistent with the general procedure specified in court rules and the court’s own precedent (see rules 8.45 and 8.46 and NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178; see also Cal. Constitution, art. I, section 3), the revised policy would make clemency files confidential unless and until someone moves to unseal the files.  Only then would the Governor have to show why the files should be secret.  That’s already the way the court has been handling clemency files of late.

If adopted, the revised policy would state that “a person seeking access to [a clemency record’s] contents must file a motion to unseal the record” and that “[t]he extent to which the contents of the record will be made available to the public is evaluated on a case-by-case basis.”  A motion to unseal would also be time sensitive — the proposed order says the court “will not entertain such a motion if filed after a record has been returned to the Governor,” which happens when the court makes an affirmative clemency recommendation (Pen. Code, section 4852).

The court has been amenable to opening up at least parts of clemency files, once a motion to unseal has been made.  And the court’s proposed order says it “perceives no rationale for nondisclosure that would justify a rigid rule shielding from public inspection the entire contents of documents such as parole or commutation investigation reports, rap sheets, probation reports, letters received by the Governor supporting or opposing a grant of clemency, and prison records, whenever they appear within a clemency file.”

The court’s proposal comes in the case of Susan Burton, where a motion by the First Amendment Coalition has been pending since May 2019, with briefing having been completed in January.  Burton’s was the first clemency recommendation request made by Governor Newsom, and the court recommended a pardon for her in August 2019.

The court invites the Governor, the First Amendment Coalition, and “[a]ny other interested person” to file responses to the proposal by January 13.


A clemency ruling backlog

“Sanctions sought against governor over redacted clemency records”

More clemency records partially unsealed

Why is secrecy the default on gubernatorial clemency recommendation requests?

Supreme Court denies Governor’s bid to seal entire clemency files, but gives him a do-over to seek partial secrecy

Motions fail to pry loose Supreme Court’s clemency denial reasons

More clemency files might be opened, at least partially

“State high court orders unsealing of governor’s pardon documents”