As a member of the Sunshine Ordinance Task Force, I am familiar with the issues that Ms. Witherell and Mr. Dorsey discuss.

I will add that what I offer in this space reflects my personal views, not necessarily those of the Task Force or any of its members.

It is, I believe, important to note that Mr. Dorsey has been a respondent to complaints filed with the Sunshine Ordinance Task Force, which in no case found a violation; that he is or was a member of Californians Aware, an organization working hard to educate lay citizens about their rights to access public records and to attend public meetings; and that he attended a number of fund-raising events to support freelance journalist Josh Wolf while Wolf was wrongfully imprisoned.

On the matter at hand: The Task Force has on several occasions found that the two paragraphs that Mr. Dorsey cites conflict with language in both the Sunshine Ordinance and the California Public Records Act. Both make clear that the format in which electronic documents are to be provided is for the requester to decide. In cases where a document contains information (either in the body text or in metadata) that is exempt or prohibited from disclosure and is segregable from information that is not exempt from
disclosure, the disclosable portion of the information must be provided.

In my opinion, for the city attorney to advise otherwise does a disservice to the counselee and to the requester of the information.

Richard Knee

From Dr. Martin MacIntyre:

Dear Mr. Dorsey,

The City Attorney's public relations officer doth protest too much methinks. After W. Shakespeare

Ms Witherell's assessment is right on the mark and apparently struck a sore note in the mind of the City Attorney's public relation's officer.

Perhaps Mr. Dorsey have forgotten a four page written opinion written by DCA Zarefsky without any legal citations, that defended the Clerk of the Board who refused to provide an original Word document of a benign Sunshine Ordinance draft amendment as requested by a citizen. The DCA's opinion said that the meta data would allow terrorist or hackers to enter the Board of Supervisor's server and potentially shut down the system or worse. When they were told by the Sunshine Ordinance Task Force to provide the Word document with the meta data, the City Attorney advised their client to delay and they wrote a memo for her asking the BOS to change to law or misinterpret it. That attempt failed but the City Attorney's office has not withdrawn that opinion and the Mayor's office continues to cite it to avoid releasing documents. They say, as Mr. Dorsey says, that it is the City Attorney's opinion that they MAY pick and choose the format for releasing the document rather than provide the one requested.

The attitude and actions - and now reaction - of the City Attorney's office to having a reporter call a spade a spade, suggests guilt rather than innocence. Actions speak louder than words, and the actions of the City Attorney's office shows that they don't want to fulfill the requirements of the Sunshine Ordinance unless it suits their client's purpose and citizens are clearly not their clients.

The City Attorney's office feels it is its duty to defend any action of any Department or employee regardless of the facts or the truth or the ethics or the law. This is similar to what a defense attorney does for someone who has obviously committed a crime. The difference is that ordinary citizens can't afford to hire attorneys to take the City Attorney to court so the City Attorney and his Deputies can say whatever they want without worrying about the consequences, until they are confronted by a reporter in the newspaper. Ms. Witherell is only saying what many of us have been saying for years without Mr. Dorsey feeling it necessary to make such a public outcry. The only difference between what I have said and Mr. Crossman has said and Mr. Grossman has said and what Ms. Witherell has said is that she said it in a publication and the only publication we have access to is PROSF.

If the City Attorney can't tell its clients (City employees and Department Heads and Supervisors and the Mayor) when they are breaking the law (which I though was an obligation of an attorney at law) which is the case when they won't release public Word documents with meta data, then tell us this is the case so there is no perception about the City Attorney being impartial. Don't use wiggle words like MAY which allows you to tell your clients to not release meta data when a citizen is making a request but then turn around and on behalf of your client (the Mayor) demand meta data from another jurisdiction (Santa Clara). There are many examples of this duplicitous action by the City Attorney which the CA justifies as "serving their client."

We need a City Attorney who acts for the interest of the citizens without the conflict of interest of being obligated to defend City Departments or employees regardless of the facts. The City Attorney should have his title changed to Legal Counsel for City Employees and the Chief Legal Counsel should be appointed. In this way there will be no appearance that he is the City Attorney who is serving the electorate. Then we should rewrite the job description for the City Attorney to serve only the citizens and to not serve as attorney for City employees. Only in that way can the City Attorney actually serve the citizens.

Martin MacIntyre

PS It would appear that the deleted e-mails Ms. Witherell mentions didn't warrant a response from Mr. Dorsey Is that an admission that she was correct?

A letter from Library Users Association:

What Amanda Witherell wrote is accurate (see below at double asterisks, **),
and Matt Dorsey's reply of 4/26/07 is highly misleading.

Mr. Dorsey has selectively chosen portions of the City Attorney's September 19, 2006 document about metadata and left out a great deal that gives a quite different impression. The effect of the original letter is:

You (a department) have discretion ---
--but terrible, terrible things might happen if you release a Word document.

It is misleading to characterize the 9-19-07 City Attorney's letter as a neutral giving of discretion to departments, as Mr. Dorsey's 4-26-07 letter does.

This last sentence from the letter that we quote below, is one we referred to when we gave testimony at the Sunshine Ordinance Task Force meeting on metadata several months ago (see quotation surrounded by three asterisks ***). We called it VOODOO. The idea that someone obtaining a document from a city department and changing the text on his/her own computer could "jeopardize the integrity of the [original] record" is like saying that someone sticking pins into a doll makes the person it represents feel pain.

Below are excerpts from what was in Mr. Dorsey's letter and what was left out.

A. What's In -- Here are quotes from Mr. Dorsey's letter:
"...City departments have discretion to provide electronic records in either PDF or Microsoft Word formats when responding to public records requests."

The "...department *may* provide the record to the requester in PDF rather than Word format." (Emphasis added)

# "A court would likely conclude that a City department *has discretion* under both the Public Records Act and the Sunshine Ordinance to provide an electronic record to a public records requester in PDF rather than Word format." (Emphasis added)

B. What's Out -- Important elements of the City Attorney's 9-19-06 memo on metadata that Mr. Dorsey's 4/26/07 letter left out:

The City Attorney's 9-19-07 metadata memo (Note Pages 2-4 show a different, November 2, 2006, date) said there were very serious problems and dire consequences of city departments providing metadata. We have added emphasis in CAPITALS.

"If a department were to give a requester a document in Word format, the DEPARTMENT WOULD BE REQUIRED TO REVIEW THE METADATA embedded in the document. Yet REVIEWING THE METADATA WOULD BE A LABORIOUS, BURDENSOME, AND PROBLEMATIC TASK.... THE INVESTIGATION NECESSARY to determine whether redactions in metadata are legally warranted would in many cases BE DAUNTING....[and] WOULD REQUIRE CONSIDERABLE EXPERTISE BEYOND THE SKILL AND CAPACITY OF ALL BUT A SMALL NUMBER OF CITY EMPLOYEES. And there is CONSIDERABLE RISK THAT EVEN THOSE WITH THE EXPERTISE WOULD NOT LOCATE ALL THE METADATA." (Page 2, paragraph 2)

(Next paragraph): "In addition, the METADATA . . . COULD REVEAL SENSITIVE INFORMATION ABOUT THE CITY'S COMPUTER AND COMMUNICATIONS SYSTEM THAT COULD BE USED BY A THIRD PARTY TO UNDERMINE THE INTEGRITY AND SECURITY OF THAT SYSTEM."

(From page 3): "The ADDED BURDEN of having to review metadata in electronic records COULD BE CRIPPLING if the City is required to provide electronic records to requesters in Word rather than PDF format."

(From pp.4-5): *** "DISCLOSURE OF A RECORD IN WORD FORMAT COULD JEOPARDIZE THE INTEGRITY OF THE RECORD because the text is so easily manipulated."***

The City Attorney's five-page advice letter of 9-19-07 is a serious warning to city departments about the supposedly calamitous consequences that could result from disclosure of metadata. To say, as SF Bay Guardian's Amanda Witherell did, that the City Attorney "strongly advised against releasing public documents that may contain metadata" seems to reflect accurately, and even soberly, what others might characterize as scare-mongering.

Additional notes about the Sunshine Ordinance Task Force rejection of the City Attorney's arguments on metadata:

It should be remembered that the City Attorney's 9-19-06 letter was issued in relation to Kimo Crossman's and Allen Grossman's requests to see one single document, the proposed amendments to the Sunshine Ordinance that the Sunshine Ordinance Task Force (SOTF) was currently working on. The SOTF Administrator, with backing from the Clerk of the Board, refused to provide it. Mssrs. Crossman and Grossman both filed a complaint with the SOTF. The SOTF did not buy the City Attorney's arguments and claims on this subject -- even though Deputy City Attorney Paul Zarefsky came personally to testify about the matter. Instead, the SOTF voted to require that the document be provided in Word, with metadata, to the two conmplainants who had requested it.

For Mr. Grossman's win on a 7-1 vote at SOTF 9-26-07, see the SOTF Minutes for Complaint Number 06015 -- especially Item 7 -- at url:

http://www.sfgov.org/site/sunshine_page.asp?id=48399

For Crossman's win the following month, 10-24-07, on an 8-1 vote, see Complaint Number 06013 -- especially Item 6 -- at url:

http://www.sfgov.org/site/sunshine_page.asp?id=48062

Peter Warfield
Executive Director, Library Users Association

From Christian Holmer:

City Attorney Spends $50,000 ($100,000?) Protecting Clerks Metadata: Bay Guardian posts new item on City Attorney and Metadata, deleted emails and backups (by Amanda Witherell)

The City Attorney (to be fair - a few DCA’s) didn’t just “strongly advise” (in the Metadata case) they “selectively advocated” violating state federal and local public records laws which clearly grant discretion to the public in selecting subject records from among existing available file formats (or at least from among those that haven’t yet been purged, or lost by the Mayors Offices– ha ha).

The Only Ones Still Citing The Zarefsky “Metadata” Memo (and strangely enough the worst violators of open government laws) are the City Offices Covered by the Mayors Record Retention and Destruction Schedule. You Know Who They Are - MONS, Room 200, MOC etc.

The Zarefsky Memos Main Impact Was To Provide Cover For Mayor Zero Transparancy Blackout. Happy Recycling/Green Building Week Big Fella…

We estimate the City Spent at least $50,000 (some estimate the number to be closer to or over $100,000) Trying to Help The COB Specifically Avoid Releasing Metadata.

Virtually Every Other City Agency, Department, Commission, Elected or Appointed Official was Releasing Metadata BEFORE, DURING and AFTER the CA’s ill-fated effort to Protect The Clerk of the Boards Metadata. What Was So Special about the Clerks Office?

The CA Estimate for the Erroneous Zarefsky Metadata 4 Page Memo Alone was $14,000. From what I’ve hear about ten days ago Zarefsky submitted another 10 pages on Metadata – What do you estimate the cost for that to be Matt (Another $20,000 at least?) We’ll find out soon enough I Guess.

Dorji Roberts (On the Phone Alone) with Kimo (in November 2005 through January 2006) rang up $7,000 or $8,000 erroneously defending withholding the metadata in documents. Phone Logs, E-mails, Payroll Records (Like the SFWeekly requested of the Controller Last Week – For The Whole Mayors Office Staff)

That’s at least $22,000 right there…

Add to that all the preceding Metadata related Correspondence (fax, e-mail, ghost written [unsigned/unattributed] at the $200 an hr. (For DCA’s) Sent to all parties (including sunshine advocates and city employees) during the course of the ill-fated CA Effort. We started the Metadata Thread Back in October of 2005.

The City Attorney charges in 15 minute billing segments right?

In making our own estimate of the Cost Incurred By the City Attorneys Office on behalf of the City and County (Defending the Undefendable) we would also need to consider all that time spent by Other City Employees (Including DCA’s) at their respective Pay Scales developing, deliberating and advocating their erroneous wholly unsupported positions before the Rules Committee, BOS, & SOTF as well

Having you (the City Attorneys Office) release the records necessary to confirm or disprove my own ballpark estimate of $100,000 would raise that number much, much higher yet again since a just a few weeks payroll data for 4 or 5 DCA’s (by your own estimate) costs $2500 - $3000 in redaction costs alone. Your estimate - not mine.

We (Sunshine Advocates) take very seriously our responsibility to be able to document and support (in this case) our estimates of the costs incurred by the City and County and a few DCA’s in their failed effort to restrict the publics access to existing electronic documents (with metadata).

We certainly wouldn’t want to float an even partially unsubstantiated $100,000 ball park estimate of the Cost Incurred By the City Attorneys Office on behalf of the City and County (Defending the Undefendable) to the Press. That wouldn’t be Cricket. J

Christian Holmer

SFSM Editor

SFSM 2005 Sunshine Data Request Related Correspondence

Pursuant to BOS Resolution #040684

P: 415-387-7405
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F: 415-387-5904
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