Capitol Alert: Alameda DA: Jerry Brown's office did not break state laws in taping case

Alameda County's district attorney announced Thursday that Attorney General Jerry Brown's office did not break privacy laws by recording phone conversations with news reporters without their consent.

Brown's office had asked District Attorney Nancy O'Malley to conduct the independent investigation into the repeated recordings made by communications director Scott Gerber, who resigned in November after news broke about his actions.

With Brown expected to announce his Democratic candidacy for governor, his handling of the case became a target of media criticism and political attacks.

O'Malley found that Gerber had disobeyed the instructions of Chief Deputy Attorney General James Humes to not record interviews with Brown and other members of the attorney general's office.

But Gerber had not violated state penal code section 632, which prohibits the intentional recording or eavesdropping of conversations without consent, because the interviews were "meant for publication and airing," O'Malley found.

Gerber recorded interviews conducted by reporters from the San Francisco Chronicle, The Associated Press and other media organizations.

"The investigation concluded, therefore, that the recorded conversations were not confidential and there is insufficient evidence to support any conclusion that they were meant to be confidential," says a press release from the district attorney's office.

The attorney general's office had reached a similar conclusion in its own investigation but asked for the second inquiry after critics accused Brown of trying to whitewash the matter. The Alameda County district attorney took the case because Gerber made the recordings in the attorney general's Oakland office.

In a written statement, the attorney general's office responded Thursday, "The Alameda County District Attorney's independent conclusion validates the Department of Justice's earlier finding that Scott Gerber only taped conversations intended for the public, which was well within the provisions of law. All of the recordings were on-the-record discussions intended for public consumption."

Thursday's findings didn't placate California Republican Party Chairman Ron Nehring, who called them "fishy."

"The Alameda D.A. has arbitrarily created an exemption that would deny reporters protection under the state wiretap law," Nehring said. "That exemption does not exist anywhere in the legislation and seems to be a product of the Alameda County D.A.'s creative interpretation."

Ryan Calo, a research fellow and privacy expert at Stanford Law School's Center for Internet and Society, said the decision "was not an unreasonable result but it didn't appreciate the subtleties of the law."

"Just because it's an interview with a public official and it could be published doesn't mean a reporter can't expect confidentiality," Calo said.