Update: On May 26, 2021, the California Supreme Court issued an en banc administrative order adopting its proposed amendment to an internal operating procedure governing the treatment of records submitted by the governor in support of applications for clemency for individuals twice convicted of felonies. The effect of the amended rule is that, upon receiving a motion to unseal, the court will treat clemency files as presumptively open unless the governor’s office can establish the need for their confidentiality under the California Rules of Court governing the sealing of judicial documents.
The Reporters Committee for Freedom of the Press has joined the First Amendment Coalition in urging the California Supreme Court to amend its proposed administrative order involving the treatment of records submitted by the governor in support of applications for clemency.
In written comments submitted to the court’s justices on Jan. 13, 2021, the Reporters Committee argues that the court should treat clemency documents as it treats all other records filed with California courts. This would mean all documents filed in support of clemency applications would be presumptively open to the press and the public unless the governor’s office can establish that the records should be sealed.
Although the Reporters Committee notes in its comments that the proposed policy amendment is an improvement from current policy, it also notes that the amendment “nevertheless places the burden on the public to assert its right of access on a case-by-case basis,” instead of placing the burden on the governor’s office to prove the opposite.
Reporters Committee attorneys argue that “the transparency provided by consistent public access to clemency files will enable the press to serve its function as a watchdog guarding against the risk of executive overreach.” The comments cite a 2011 story by ProPublica and The Washington Post that revealed racial and financial inequity in presidential pardons.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.