California sunshine

THE FIRST THREE years of this millennium will not go down in history as great moments in the battle for open government. In fact, the Bush administration, through Attorney General John Ashcroft, has gone to great lengths to promote maximum government secrecy. In the name of national security and executive privilege, all sorts of basic information about the workings of government – from the records of Vice President Dick Cheney's energy task force to the names of people detained as terrorists – has been protected from public view.

But here in California, and in San Francisco, the forces of open government are fighting back – and the outcome could have major national implications. As Steven T. Jones reports on page 16, state senator John Burton has managed to get a measure on the November ballot, SCA 1, that would put the right of public access to government records and meetings into the state constitution. The long-term impact could be enormous: If SCA 1 passes, public agencies would have to prove that the release of records would have a significant negative impact on the public interest before they could keep those records secret. Elected officials would have to take sunshine into account when passing laws. Judges would have to treat the right to open government as a fundamental precept of law.

Burton deserves tremendous credit for his two-year campaign to pass SCA 1. It wasn't easy: the secrecy lobby (taxpayer-funded government agencies and private interests that constantly fight better access laws) raised all manner of objections, but Burton skillfully guided amendments and compromises that led to a final product that at this point has no major opposition. Oakland city attorney John Russo has agreed to help lead the fight to pass the measure – and since city attorneys tend to be among the leading foes of sunshine laws, that's a big victory. San Francisco city attorney Dennis Herrera, who has been far better on open government than his predecessor, ought to publicly join the campaign and endorse SCA 1, as should Mayor Gavin Newsom and the San Francisco Board of Supervisors.

In the meantime, the San Francisco Sunshine Ordinance Task Force is in the process of reviewing the five-year-old law, looking at its successes and failures and preparing some proposed changes. The proposals will go to the supervisors, and the board should hold public hearings on the measure and then put a comprehensive package of reforms and loophole closures on the November ballot.

There are all sorts of problems that sunshine advocates have encountered since the landmark law passed in 1999. Here are some of the items that should be added to the ordinance:

Preserving mayoral records The ordinance currently states that documents received or created by the mayor or the mayor's staff are the property of the city, and must be preserved and maintained in city custody after the mayor leaves office. But as former mayor Willie Brown was preparing for the end of his final term, nobody was watching to make sure his records survived. The law should clearly state that the city attorney has responsibility for monitoring outgoing officeholders and making sure that no public records are removed or put in the shredder.

Preserving communications received by city officials When an Ethics Commission staffer received an e-mail that a lawyer for Newsom's inaugural committee had sent by mistake, the commission's executive director, Ginny Vida, ordered it destroyed. The City Attorney's Office ruled that there was no legal reason to save the document. That's nonsense: an e-mail potentially pertaining to a matter in the commission's jurisdiction should have been preserved – and the law needs to be amended to protect any such records.

Requiring disclosure by city contractors and franchises Clean Channel Communications has the exclusive right to build pedestal-mounted news racks and sell ads on them – but the city has no way to know how much money the company will make on the deal. Pacific Gas and Electric Co. has had since 1939 an exclusive, perpetual franchise to sell electricity in the city – but PG&E refuses to disclose its local profits. There are numerous other examples. The Sunshine Ordinance needs to be expanded to require that all holders of city franchises – and all bidders on future franchise deals – be required to release their profit and loss figures for that franchise deal. All other city contractors, including nonprofits, that receive more than a small amount of city money (say, $100,000 a year) should be required to abide by the Sunshine Ordinance for any matters related to those contracts.

Improving enforcement The Sunshine Task Force has only limited enforcement power, and city officials routinely ignore or defy its rulings. The law should give this body clear and specific authority to order city officials to release records and should direct the city attorney to take whatever steps are necessary to make sure those orders are carried out. That's what happens in Connecticut, where the state Freedom of Information Commission has the specific statutory authority to order the release of records and to void any action taken by a public agency that was out of compliance with the state's FOI laws. (The agency's Web site outlines its responsibilities at www.state.ct.us/foi/What_We_Do.htm.)

Expanding the sunshine law to the school district and community college district The Sunshine Ordinance currently applies only to city agencies, and since the San Francisco Unified School District and the San Francisco Community College District are autonomous agencies operating under state law, both districts have so far refused to be bound by the local sunshine requirements. The college board is negotiating with the Sunshine Task Force and may soon agree to abide by the law, but the school board is still resisting. Now that the voters have approved a measure to give city money to the schools, city officials have a direct interest in seeing greater openness and accountability at the SFUSD and should demand that the school district comply. Sup. Tom Ammiano has told us that if the school board won't adopt the sunshine law, he'll push to place a measure putting the schools under the local ordinance on the ballot. That's an excellent idea; it should include both the community colleges and the SFUSD and should be part of any November sunshine package.

The Sunshine Task Force meets to consider amendments to the law March 10, 6 p.m., City Hall, Room 406, 1 Dr. Carlton B. Goodlett Place. S.F. Anyone who's had trouble getting information from City Hall ought to show up and let the task force know what the problem was and how it could be solved.

San Francisco already has some of the best open-government laws in the country and has set the standard for local sunshine efforts. With a little more work, the Sunshine Ordinance can get even better – and the state of California can take a big step forward.