August Sunshine News

05 Aug 2021

Good news: SOTF has many more members of the public participating now than in recent memory! And at least from my own knowledge, there are quite a few additional people also listening in who aren’t speaking.

Bad news: They have no additional paid support to do all this more work, and some of the effects of that were evident last night.

Here’s my interpretation of SOTF’s meeting last night – of course I know a lot more about my own case.

The rulings #

19103 Anonymous v Breed, et. al #

SOTF deemed Mayor Breed’s date, time, location, and participants of future telephone, virtual, and City Hall meetings disclosable and ordered them to be disclosed immediately. This was in addition to the prior order of determination in my favor on this matter generally forcing future Breed calendars to be disclosed, and the Mayor was, after that first order, disclosing the week, and subject with some participant names of her future meetings. Breed has until Monday to comply or will be referred to the DA and Ethics Commission by SOTF according to their order.

• SOTF weighed various security arguments made by the Mayor’s Office, and concluded either that they aren’t sufficient in the balancing or just don’t apply: Gov Code 6254(f) security procedures of SFPD; Evid Code 1040 official info privilege under the balancing test in (b)(2); and Times Mirror Co v Superior Court. But when you actually listen to the tape, the Mayor’s Office’s arguments don’t stick only to the actual words of these exemptions, and in my view were an attempt to broaden the exemptions, which is not allowed under the Constitution, Article 1, Sec 3.
  • As Member Schmidt pointed out, official information privilege does not apply because the info is not in fact acquired in confidence.
  • The information does not appear to be a record of a security procedure of SFPD at all - as I have argued since the beginning. A security procedure would be something like: bodyguard info, what kind of weapons they possess, the route the Mayor’s car may take from A to B. It would be, for example, the Special Investigative Division security detail entries that have already been properly withheld.
  • Thus what is left is the actual physical security interests of the Mayor personally, and they have to clearly outweigh public interest in disclosure.
  • The Respondents themselves brought up the right to protest under the First Amendment and their concern that such knowledge of future meetings could cause disruption to the meeting. But disruption is not the same as a physical security interest of the Mayor - this is an unconstitutional broadening of the exemption. For example, a protest can be disruptive in the sense that it destroys the Mayor’s carefully crafted media narrative - that is not an exempt security interest though.
  • Member LaHood also pointed out a form of public interest in disclosure of these details that I had not identified: these details allow the public to understand the order in which the Mayor consults others to formulate policy and make decisions. This is very important: are the decisions already made with lobbyists before she hears from the public?
• I did not ask for additional details of future meetings where Breed is out-and-about, so SOTF did not rule on the potentially more nuanced security implications of those other meetings. I might later do that in a separate complaint, but I took an incrementalist approach here to get what I believed was definitely disclosable.
• There was a lot of public comment on this item - essentially all in support of disclosure and enforcement. Chair Wolfe formulated a detailed and firm approach to referral for enforcement; I hope SOTF does that more often in these post-OD hearings.
• Aside: Breed’s representative Mr. Heckel also, for the second time, gave a graphic example of some pig’s head used to vandalize Nancy Pelosi’s home as some form of argument against disclosure. Obviously, people protest at the Mayor’s home and already know where she lives - what does that have to do with knowing Breed is taking a phone call at 930am on Tuesday? In a prior hearing on this same case, Heckel raised the assassination of George Moscone and Harvey Milk, by a fellow public official, and was criticized by both SOTF members and members of the public for doing so. Such extreme, emotionally-manipulative arguments don’t seem to do much good for the City, and they shouldn’t – the City tried the same for metadata, raising apparently unrelated hacks of various governments: when the SOTF asked if there was any evidence that public record metadata had been used in that attack: of course no one had any proof. I pointed out at the time, that if instead of making absolutist arguments the City genuinely attempted to weigh every piece of information under the exemption criteria they might actually be more successful – because that’s exactly what the law requires, SFAC 67.26.

20106 Klausner v Police Commission #

SOTF ruled that the Police Commission unlawfully grouped several agenda items into one and failed to allow public comment on each, SFAC 67.7(a) and 67.15, and urged the Commission to correct their agendas going forward and to attend SOTF’s own training on the matter.

• The Police Commission currently combines multiple reports to the Police Commission under a single item, including the Commission itself, the DPA Executive Director, and SFPD Chief. These all together allow only 2 to 3 minutes of total public comment per person.
• At the time this complaint was filed, the Police Commission had also been combining various presentations about distinct topics into that single public comment period. After the complaint, they apparently did split out the presentations, but kept the reports together as one item with one comment period.
• Not only do members of the public have to wait a long time to get through all of these distinct reports and presentations before they make comment, but they also have to address a number of different topics in a single small comment period.
• What is interesting here is the granularity of what constitutes a separate agenda item necessitating its own public comment period. It’s unclear what hard and fast rule exists.
• A separate allegation regarding time limits being placed by the Police Commission on each of these reports was not ruled on. Apparently the Commission forces each report to be no longer than 10 minutes, and they did that specifically to mitigate the concern about how long commenters have to wait before commenting. But this creates new problems, because important topics within the reports all get glossed over when combined together and sped up.
• Klausner also wished for the Police Commission’s President to attend and defend the complaint as the President is the person who actually has authority over the agenda, but SOTF only requires a representative to attend, in this case the Commission Secretary.

20079 Anderies v Boudin, et al. #

SOTF ruled for a violation of Admin Code 67.21(b) for an untimely response and 67.21(c) and failure to assist.

• This case was about communications to and from Boudin about a former ADA across numerous different kinds of communication, email, messaging apps, etc. At the end, it appears they withheld the 5 records they found based on claimed attorney-client privilege, due to some separate lawsuit between the complainant’s client and the DA’s Office.
• The key failure was that the DA’s Office did not conduct a thorough or complete search until directed to by SOTF. As Vice Chair Yankee pointed out, if there is auto-deletion (or even manual deletion) of records happening, it is critical to conduct the search at the time of the actual request. Otherwise, even if agencies later on conduct a search, they get away with non-disclosure by simply allowing the records to be deleted, and then search after the deletion, and can just respond ‘no records.’
• I attended a number of the investigative hearings on this case at a committee level. From my observation, the DA’s Office was very cagey when asked exactly how and when and to what extent they had searched for the responsive records; with Chief of Staff David Campos taking issue at SOTF’s specific questions. It took multiple hearings at their Compliance committee to understand what was actually done: most importantly whether only Chesa Boudin’s own records were searched or also all the records in the rest of the office of people who communicated with him. Of course, it is entirely possible that while Boudin himself deleted his copy, the other person did not delete their copy (or vice-versa). I made a public comment at one of the hearings that: if this was in court, someone would make an objection of non-responsiveness based on the evasiveness of the DA’s representatives’ answers.
• It’s unclear if all of the records have even at this point actually been searched – Member LaHood mentioned that during one of the prior committee meetings they were doing an IT search of the office’s email servers, but the Compliance committee will usually eventually again take up this matter and consider whether compliance has at that point been completed.
• The complainant also alleged that while the public was now well-aware of Boudin’s use of Signal, that the DA had shifted to some other messaging app. It’s unclear whether this is true or not, but SOTF did broaden their ruling not just to be limited to Signal search untimeliness, but to cover all of the various types of records originally requested, so as to prevent any kind of loopholes where non-Signal records wouldn’t have to be searched.

In other news #

• 20011 Sumchai v Breed, et al. - While this item took a large chunk of the meeting, there was no decision on the merits, and due to some sort of clerical error combined with a confusion over what issues were actually germane to this complaint vs a prior complaint by Dr. Sumchai, the matter was referred back to Committee for more detailed study and potential split-up. The SOTF determined it could not decide one of the many issues raised, which was essentially a complaint against the SOTF itself for allegedly allowing the Respondent to unilaterally delay an earlier hearing on the same matter without Dr. Sumchai’s input. Having attended various of the earlier meetings on this case, I think the confusion points to why complaints should be more structured. I’ll be proposing some additions to the initial Committee process as the Complaint Committee had agendized some improvements (not yet known) to their own process.

• SOTF discussed, but did not yet approve, a system-wide advisory re: SOTF’s interpretation of the timeliness requirements under Sunshine with a letter proposed at least in part by Mr. Monette-Shaw. This was approved in principle by their Education and Training committee a while back. As I and other commenters stated: While the City Attorney tells you all what he thinks, SOTF’s interpretation is often more exacting and more broadly interprets access – and it’s the interpretation that SOTF has that determines complaint rulings. Importantly, the SOTF is not allowed to provide input into Herrera’s Good Government Guide, so there isn’t any documentation of SOTF’s views.

• SOTF approved a pilot program proposed by the Chair to specifically ask respondents whether they (a) admit alleged violations, (b) no-contest, or (c) deny the allegations - and in the former two cases, accept an Order of Determination without having to conduct or attend a full SOTF hearing and thus go straight to Compliance for monitoring of corrective action (if SOTF also agrees with doing so). The first pilot batch proposed is my many remaining open Prop G complaints. It’s unclear when they will actually start the process of asking you all what your response is. My understanding is of course that any Respondents who do deny the allegations go through all the normal hearing processes, required attendance, etc., as usual.

  • The law, as has been discussed in the last few SOTF meetings prior to August, does not appear to require a hearing unless the complainant asks for one AND the SOTF agrees to grant one, at which point then the Respondent must attend. In this pilot SOTF appears to be only using this if both the complainant and respondent want to go through with this no-hearing process by admitting/no-contesting the allegations.
  • Given that almost all of the Prop G respondents claimed at the initial committee hearing that they had learned better and planned to or already improved, I’m hopeful some department heads will choose to accept the ODs without further hearings, but that’s up to all of you of course. At least now there’s an option to not have to go through hearings when there is no longer any remaining dispute between the parties.
  • I think it’s strange that there is no simple deny/admit question like this in general for all complaint responses, and I urge SOTF to expand this process beyond a pilot, if it works. There are a number of complaints in the backlog purely around timeliness especially others, when the City doesn’t really dispute that they did not give the records originally, but they now have belatedly, and nothing more needs to be produced, but there are still many hours of hearings needed of City staff, the public, and SOTF. Some other members of the public have commented on how they could streamline those complaints with less work involved.
  • If expanded beyond a pilot, it could also help crystallize for all complaints what exactly the SOTF is being asked to rule on that is in dispute. Sometimes when complainants allege 4 things, maybe 1 is admitted, another is denied but the complainant accepts the explanation and withdraws the allegation, and only 2 of the 4 are finally in dispute. SOTF should know that instead of having to rehash it in hearings.

And then my phone died =P