The FOI Issue: New sunshine warriors are changing the way City Hall does business
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On Saturday mornings, with roughshod regularity, a handful of San Franciscans gather at the Sacred Grounds Cafe on Hayes Street to swap strategies and catch up on their political triumphs and setbacks. They don't look like a powerful bunch, and they aren't household names, but they're changing the way the city handles public records, meetings, and information.
All of these folks started with one simple request for what ought to have been public information. All of them ran into a stone wall. They eventually found one another at hearings in front of the Sunshine Ordinance Task Force, where they took their cases and debated the minutiae of the law that grants them access to what they're looking for.
For Wayne Lanier, it started with a $600 tax for neighborhood beautification. James Chaffee and Peter Warfield were seeking reform at the San Francisco Public Library. Kimo Crossman wanted more transparency in the city's wi-fi deal with Google-EarthLink. Michael Petrelis was trying to find a keyhole into local nonprofit AIDS agencies. Allen Grossman thought the city's attorneys should shelve their redactive black ink. And Christian Holmer he just considers sunshine a part of his job.
They've been working together loosely during the past year or so and in most cases, they've won. Their ongoing battles also show how the city's laws and practices badly need reform.
Collectively, the sunshine crew considers the issue of metadata its biggest victory of the year (see "The Devil in the Metadata," 11/15/06), because it forced city officials to abandon their fear of the unseen electronic data that is generated whenever they hit send or open a new word-processing document.
Paul Zarefsky, a deputy city attorney with the City Attorney's Office, argued that electronic documents could be rife with redactable goods and hackers could use this data to crack into the city's server. According to him, this was ample reason to only release public information as a paper document or a PDF. The sunshine activists said this was an environmental waste and a very unuser friendly format in this age of electronic searches. The task force and Rules Committee of the Board of Supervisors agreed, found the city attorney's arguments specious, and demanded agencies follow the letter of the law and release documents in an electronic format.
Some departments still aren't doing that, which is a problem these citizens have discovered: the Sunshine Ordinance, though very good, could be much better and is overripe for reform.
The ordinance, adopted by voters in 1993, grants San Franciscans far more traction and power than the federal and state open-records laws by setting deadlines and offering the forum of the task force for addressing complaints when documents are not forthcoming.
When a citizen makes a request for a public document, it's often because somebody sees something from the kitchen window while washing dishes and says, "Huh, I wonder what's going on."
For Wayne Lanier, that moment came when he received a bill from the city for $600 after he improved the sidewalk and installed some planters in front of his house on Fell Street. Lanier had gone through the proper planning and permit process and was confident everything he'd done was within the law. So why was he being fined?
With a little research, Lanier discovered that an ordinance, recently passed by the supervisors at the urging of the mayor, inadvertently took into account sidewalk fixtures such as planters when taxing property owners and merchants for putting up signs and cluttering rights-of-way. Lanier began to research how the law came to pass.
"I was told there were various meetings with the mayor," Lanier said. "I didn't know when they were. So I started using the Sunshine Ordinance as a means to getting the mayor's calendar. First I wrote a rather chatty letter asking for it, and there was no response. So I wrote a more formal request and also said maybe you ought to make your calendar public. The governor of Florida's done it. It's quite easy to do."
But it wasn't easy for room 200. Lanier filed his original request March 3, 2006. A year later he has not received what he asked for. He's been told by the Mayor's Office of Communications that the calendar can't be released because it tells exactly where Gavin Newsom is supposed to be and who is going to be protecting him. Lanier has urged the office to make the document public at the end of each week, once security concerns have passed. That hasn't happened.
In addition to losing portions of the mayor's calendar during a staff turnover and heavily redacting the few calendar items it has made available, the Mayor's Office has not set or followed a policy regarding public access to this public document. But Lanier's original request has not been dropped. Christian Holmer picked it up.
Holmer is sunshining for sunshine. A manual laborer by day, Holmer's been a longtime resident of the Haight-Ashbury neighborhood and became volunteer coordinator of the San Francisco Survival Manual, a manifestation of the 40-year-old Haight Asbury Switchboard, once a clearinghouse of services and information for city residents. The modern-day equivalent is part of a public information pilot project approved in 2004 with the support of 10 members of the Board of Supervisors that encourages the sharing of all city documents in an open forum. Holmer makes regular and massive requests for all manner of information from a variety of agencies, urging them to employ the technological ease of e-mail to send him documents as soon they're created by the city in effect, CCing him on everything.
Holmer says the point is not only to compile a library of city documents but to establish best practices for the agencies that are supposed to provide information when the public requests it. By encouraging this free flow of information that takes, according to him, only a few keystrokes and mere seconds to disseminate electronically, Holmer hopes a culture of openness is being cultivated.
"You push a department to a certain level of compliance, and it raises all the boats," Holmer said.
James Chaffee began seeking public information about the San Francisco Public Library in 1974, long before the Sunshine Ordinance was born. The tall, professorial man has a habit of employing erudite references from literature, philosophy, and film in his regular newsletters decrying the secret actions of the Library Commission. His writings have received attention and acclaim in the national world of library news.
"The original library commissioners would be shocked if they could see the openness that exists now," Chaffee says.
He's pushed for more weekend library hours and successfully brought enough attention to block the public library's plans to purchase costly and suspicious radio-frequency identification tags and grant the task of collecting overdue fees to a debt agency.
Peter Warfield, executive director of the Library Users Association, and Lee Tien of the Electronic Frontier Foundation, picked up the radio-frequency issue and ran with it, making public records requests that might substantiate the library's argument that thousands of dollars in workers' compensation claims for repetitive stress injuries would be remedied by an investment in the expensive new technology.
The library wouldn't turn over any documents, so Tien and Warfield went across the bay to Berkeley, which doesn't have a Sunshine Ordinance (though the city is currently working on one). The Berkeley Public Library gave enough information to fully debunk the claims. Of more than $1 million spent on five years of workers' comp, just 1 percent was for repetitive stress injuries. The Chaffee-Warfield-Tien efforts halted a nationwide move toward employing this potentially privacy-invading technology.
Then there's Kimo Crossman.
Crossman is regularly criticized for his public records requests, which some city agencies feel are voluminous and burdensome. "I've had to stop the office a couple times. There are 300 people in this office," said Matt Dorsey, spokesperson for the City Attorney's Office, which receives almost daily requests or reminders of requests from Crossman, the length and breadth of which bring some city departments to their knees.
Technology is Crossman's interest, and he made his first public records request of the Department of Telecommunications and Information Services in September 2005, for contracts and related documents between the city and Google-EarthLink.
"As an interested citizen, I wanted to participate in the wi-fi initiative," Crossman told us. He received his request with 90 percent of the information redacted. The DTIS claimed attorney-client privilege and the need to protect proprietary information to keep Crossman from seeing more than a fraction of the data.
Even though a specific section in the Sunshine Ordinance allows for the release of a contract when there are not multiple bidders and today the deal is strictly between the city and Google-EarthLink, the DTIS still refuses to hand over the documents Crossman wants. DTIS spokesperson Ron Vinson continues to cite the advice of the City Attorney's Office.
The city attorney's relationship with sunshine is a problem, according to Allen Grossman, a retired business lawyer. Grossman's requests for information have transcended their original intent some Department of Public Works permits for tree removal near his home on Lake Street. They have become an inquiry into why so many departments regularly employ the City Attorney's Office to represent them when it's a direct violation of section 67.21(i) of the Sunshine Ordinance. That section states the city attorney "shall not act as legal counsel for any city employee or any person having custody of any public record for purposes of denying access to the public." The public lawyers are permitted only to write legal opinions regarding the withholding of information, which must be made public.
"The whole purpose of that section was to level the playing field and get the lawyers out of it," said Grossman, who says the office ghostwrites letters denying access, putting citizens who may not have legal counsel to advise them at an unfair advantage. It's not in keeping with the spirit of the law.
Dorsey defends City Attorney Dennis Herrera, pointing out that deputy city attorneys no longer represent departments at the task force when there's a complaint. They're still writing those letters, though.
"When we give advice on sunshine, it's a matter of public record. We will prepare a written cover-your-ass statement," Dorsey said. "To some we would appear as the bad guy, but I yield to no one on our commitment on sunshine in this city."
Bruce Wolfe, a task force member who's seen scores of departments employ the ghostwriting tactic, said, "There is one area that concerns me greatly the use of attorney shield. The question is what is the city attorney's role? The advice is important because that's something every other department can use, but it shouldn't just be some way to squiggle out of providing records."
Dorsey related a recent case in which KGO wanted access to Muni documents that identified the names of operators. "We provided the documents, but we redacted the names. If we lose to KGO in front of the task force, we have to turn over docs. If we lose to a court that finds we violated privacy, we're on the hook for potential substantive damages. These results can get very expensive for taxpayers. There's an act of balance that has to occur."
Many task force members, activists, and citizens agree that the ordinance and task force are wonderful tools but still lack the necessary bite. The task force has no power to review documents and determine if a department's secrecy claims are true. And when a department is found in violation, there are no specific fines or penalties that the task force can levy.
But some are still happy the body even exists. "We have a great Sunshine Ordinance Task Force," said Michael Petrelis, who has been trying to find information about local AIDS nonprofits and advisory boards that are usually exempt from public records law unless they receive city funding. Petrelis found that avenue into these organizations, and when they don't comply with records requests it's still a boon for him, because filing a complaint requires them to come and be accountable in front of the task force, an open hearing that Petrelis can also attend. "I have learned so much at those meetings, just observing," Petrelis said. "The task force process is so valuable in all its beautiful permutations." *