Some teeth for the sunshine law

After 17 years, the Ordinance still isn't working

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EDITORIAL The San Francisco Sunshine Ordinance is a national model for open government, the first and strongest local sunshine law in the country. It was written to improve public access to government records and meetings, and to clear up some of the problems and loopholes in state law. On paper, it makes San Francisco a shining example of how concerned residents can come together and eliminate secrecy at City Hall.

But 17 years after its passage, it's still not working. That's because city officials routinely ignore the law — and the city attorney, the district attorney, and the Ethics Commission have utterly failed to enforce it.

Here's how it works, in theory: A San Franciscan makes a request for records in the office of a public official. The official is supposed to make the documents available promptly — within 48 hours for immediate disclosure requests and within 10 working days for routine requests. If the records aren't forthcoming, the resident can complain to the Sunshine Ordinance Task Force, which brings both sides in, holds a hearing, gets legal advice, and determines whether the complain is valid. If the task force finds that the official should have made the records available, the matter gets referred to the Ethics Commission, which can file charges of official misconduct.

Here's how it happens in practice: Some officials, like Mayor Gavin Newsom, simply ignore sunshine requests, or delay responding well beyond the statutory limit, or refuse to release records on grounds that clearly violate the law. The task force holds a hearing, and nobody from the Mayor's Office shows up. Then the task force finds in favor of the person seeking the records, sends the file to the Ethics Commission — and the whole thing dies.

Not once in the history of the ordinance has the Ethics Commission actually filed misconduct charges. Not once. Violating the Sunshine Ordinance is a crime, but D.A. Kamala Harris has never once prosecuted a miscreant. And public officials who disobey the law hide under the protection of advice from the city attorney — although that advice itself is secret.

The message to City Hall is clear: you can defy the sunshine law with impunity; nothing will ever happen.

The task force is offering a series of amendments to the law that would improve enforcement and give the measure some teeth. The supervisors ought to support those proposals — but the board ought to go even further.

The proposals would turn the task force into a commission, which is a fine idea. But more important, the new commission would have something extraordinary: a $50,000 litigation fund to pay for an outside lawyer — not the city attorney — to sue officials who flout the law. If those lawsuits succeed, the city would have to pay attorneys' fees, which would replenish the fund. And the very threat of that could have a huge impact on the way City Hall responds to sunshine requests.

We support the plan — and since nobody else will enforce the law, we think the task force (or commission) needs the authority to do it. The body overseeing sunshine complaints should be able to force public officials to release records or open meetings; rulings from that body should have the force of law. That works well in Connecticut, where a state Freedom of Information Commission has the authority to order anyone, from the governor to a city council, to open up files. Government in that state hasn't become unwieldy; officials secrets haven't fallen into the hands of terrorists. But ordinary citizens who can't afford a lawsuit have a forum to force reluctant public officials to do their business in public.

San Francisco should adopt that model, and the sooner the better.

Comments

A big thanks to the Bay Guardian for calling attention to the Sunshine Ordinance reform effort. There are considerations not mentioned in your editorial that I believe are noteworthy:

-- The Sunshine Ordinance Task Force is a standing, not an ad hoc, body, and my task force colleagues and I believe that this fact would better register with city officials and employees, and with the public, if it were redesignated as a commission.

-- The task force/commission would not become a Charter commission; therefore its powers, and the potency and jurisdiction of the ordinance would change only as prescribed by the ordinance amendments. Moreover, the current system of appointing members to the task force/commission would remain.

-- The amendments would include a provision empowering the task force/commission to issue subpoenas on its own, without having to seek case-specific authorization from the Board of Supervisors.

-- Your editorial mentions that public officials who disobey the ordinance "hide under the protection of advice from the city attorney — although that advice itself is secret." That's not quite true. The ordinance already stipulates that advice on sunshine- and ethics-related issues is a disclosable public record. The problem is that such advice is usually verbal rather than written, and city officials and employees are under the misimpression that verbal advice and the identity of the person(s) providing it are exempt from disclosure.

-- The task force plans to have a pair of special meetings -- mostly likely in the late afternoons on March 30 and April 6 -- to dot all the i's and cross all the t's in the amendments package. We hope the meetings will be well attended and receive widespread public attention.

Posted by Richard Knee on Mar. 10, 2010 @ 4:35 pm