SF Neighborhoods

3 Minute Public Comments at the Sunshine Ordinance Task Force Meetings

The Sunshine Ordinance Task Force (SOTF) allows the public to speak or read for 3 minutes during their public comment section. They allow up to a 150 words to be submitted for their minutes whether you read the same words over 150 in the 3-minute public comment. You can submit both the full comment and the reduced 150 word brief written summary. Both become public record. Any contact or submission to SOTF becomes public record.

SOTF By-Laws, Section 11. Public Comment. Members of the public may comment on each agenda item at the Task Force or committee meeting. The Chair shall permit each person who wishes to speak on an agenda item to be heard once for up to three minutes. Members of the public may address the Task Force on matters within the jurisdiction of the Task Force but not on the agenda once for up to three minutes during general public comment. The Chair shall allot each member of the public the same maximum speaking time at the beginning of each agenda item, excluding persons making presentations requested by the Task Force. The Chair may limit the time permitted for public comment consistent with state and local laws. Any person speaking during a public comment period may supply a brief written summary of their comments, which shall, if no more than 150 words, be included in the minutes.

These are public comments stated or submitted in full to the Sunshine Ordinance Task Force and reduced to 150 words for their written public comment in SOTF agendas.

Index

Public Access Laws must be Broadly Interpreted to Further Public Access to their Government

(Submitted and Spoken at the July 20, 2020 meeting of the Complaint Committee meeting and the Full SOTF on August 4, 2021).

At the last full task force meeting there was discussion around a custodian of record responsibility Sec 67.21 (C) “A custodian of a public record shall assist a requester in identifying the existence, form, and nature of any records or information maintained by, available to, or in the custody of the custodian” A narrow interpretation of that provision would be only to the records that are of within the department. A broader interpretation with available is if they have access to the records. How task force members vote often falls on how narrowly or broadly you read provisions.

California Constitution, the courts, and the Sunshine Ordinance instruct you to interpret provisions broadly and importantly only narrowly if the law expresses specifically to the contrary. Constitution Article 1, Section 3 (b) (2) “A statute, court rule, or other authority, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

Sierra Club v. Superior Court (2013) where terms are ambiguous the constitutional canon requires an interpretation that maximizes the public’s right of access unless the Legislature has expressly provided to the contrary.

' “In other words, all public records are subject to disclosure unless the Legislature has expressly provided to the contrary." Williams v. Superior Court (1993)

People ex rel. Lungren v. Superior Court (1996) "civil statutes for the protection of the public are, generally, broadly construed in favor of that protective purpose"

This is all to say that if you, a task force member, are going to vote against a broad interpretation of a public access provision, then you should cite a specific provision of statute that provides to the contrary or is a specific exemption.

Custodian of records by department is a construct of city departments and not of the Sunshine Ordinance. There could be custodians of records for the executive branch or whole city. While the term “department” is defined in Sec 67.20 (a), it is not used in conjunction with defining custodian of records or availability to records. A custodian of records is defined in 67.21 (a) “Every person having custody of any public record or public information, as defined herein, (hereinafter referred to as a custodian of a public record)” This definition says every person not even qualifying only to city officials or a designated person, you just have to have custody of public record or information. If a city official responsible for a city program that interacts with any person who has any public record or information than that public record or information is available to them.

The City must Present Knowledgeable Respondents to SOTF Complaint Hearings under the Sunshine Ordinance Section 67.22 Release of Oral Public Information

(Submitted and Spoken at the February 5, 2020 meeting of the full SOTF).

Most of the time in speaking to you, I can only do it in 5 or 3 minute time intervals. I have been failing miserably.

My previous complaints were against Mr. Jonathan Goldberg and Mr. Chris Corgas to show how actively involved the city was in Mission Dolores Green Benefit District formation. These 2 city employees never showed up to any of the hearings. Instead, the custodian of records showed up to the hearings. This allowed for plausibly misinformation, as the custodian of records did not have clear knowledge of the contracts, GBDs or the activities of city employees in the formation process. Furthermore, the custodian of records made arguments that were misleading and included records that had nothing to do with the complaint. At the most charitable, this was unintentional, but I do believe was a deliberate agency tactic. What it causes for the petitioner is a whack-a-mole situation of countering their arguments while still trying to get relevant points across.

Chairman Wolfe asked a custodian of records if the Green Benefit District contract and effort was still in effect. The custodian of records gave a non-answer or did not appear to know. The inability to answer simple questions or giving incorrect answers benefits the city not the public during SOTF hearings.

Fundamental rule in the California Public Records Act (CPRA) is the presumption of public access. If the public cannot access knowledgeable officials, for whom a complaint is against during a hearing, then they do not have access to public records.

Sunshine Ordinance Sec 67.22 Release of oral public information shall be accomplished as follows:


Knowledgeable is a key word.

In my opinion, if SOTF determines that the designated representative is not fully knowledgeable or none appears at a hearing then you should not vote or issue an Order of Determination for the city. Each hearing, SOTF is also asking for the public record.

SOTF hearings and documents become public record. Transparency of government relies on records and oral information to be accurate and true.

I realize that SOTF cannot force knowledgeable city employees to appear before you, but if they do not you can vote that the city has violated 67.22(a) The Sunshine Ordinance Task Force does now ask if the City’s Respondent before them is knowledgeable about the complaint and if not finds that City’s Department in violation of 67.22(a).

Thank You for your Time.

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Attorney-Client Privilege Confidentiality is Confidential “unless it has been expressly relied upon in making of a decision, if the public interest in such secrecy outweighs the public interest in disclosure.” San Gabriel Valley Tribune v. Superior Court (1983).

(Submitted and Spoken at February 3, 2021 meeting of the full SOTF).

Speaking to the discussion of attorney-client privilege of your Jan 12th meeting, "official information privilege allows a public official or public agency or task force such as yourself, to withhold information submitted to them in confidence, until and unless it has been expressly relied upon in making of a decision, if the public interest in such secrecy outweighs the public interest in disclosure.” San Gabriel Valley Tribune v. Superior Court (1983).

For the task force has a “balancing test” of where you would have to demonstrate to a judge that the secrecy of withholding outweighs the public interest of disclosure on how your decisions are made. This is a case-by-case basis and goes down to whether an individual on the task force relied on privileged information to make a decision on their vote especially in close votes.

Sunshine Ordinance 67.1 (a) Government’s duty is to serve the public, reaching its decisions in full view of the public.

Sunshine Ordinance 67.24 (i)

“if the public interest in withholding those records clearly outweighs the public interest in disclosure.” Shows up 10 times in California Public Records Act. The interest of government and the public should not be divergent. Any divergent is self-interest of an individual or individuals. I would urge the Sunshine Ordinance Task Force to make all information public that it uses to come to any decisions.

Thank You for your Time.

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Comparative analysis of California Public Records Act and the Ralph M. Brown Act to the Sunshine Ordinance.

(Submitted for February 3, 2021 full SOTF meeting. Because of technical difficulties was not spoken.)

I am happy that task force is making a comparative analysis of Public Records Act and the Brown Act to the Sunshine Ordinance.

One importance of doing this comparative analysis is that except for one court case based on the Sunshine Ordinance all other court cases are based on the Public Records Act and the Brown Act. Court opinions on public access are greater than task force opinions.

While the Sunshine Ordinance does expand on public access in many areas, it comes up less than in other areas. One area is in definitions. The Sunshine Ordinance starts with “city”. Both the Public Records Act and the Brown Act start with “local agency” which is defined as a long list of entities of which the “city” is just one. The definitions in the Sunshine Ordinance are not expansive overall.

I have been to task force hearings to the determination of jurisdiction, and discussion goes directly to whether a body is a “passive body” or “policy body” in the Sunshine Ordinance. In my opinion, this distinction is a moot point for jurisdiction since both are covered under Sunshine.

As an example, at the Jan 12 meeting I heard Chairman Wolfe state that there has been previous debate as to whether the task force was a passive or policy body. A good argument could be made either way, but there is no doubt that the task force is covered under the Sunshine Ordinance.

In my opinion, the question of jurisdiction should go to determining “local agency” and “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person” or to the point is it something that a “local agency” is doing on behalf of the people?

Thank You for your time

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SOTF 2021-2-3 Agenda Item 7 (g) 4 Analysis of Governor's & Mayor's Executive Orders on the California Public Records Act and the Ralph M. Brown Act and the Sunshine Ordinance under emergencies, catastrophes & disasters using current pandemic as case study.

(Submitted and Spoken at the February 3, 2021 meeting of the full SOTF).

Given I have only 3 minutes, my comments are truncated.

The Brown Act and the Public Record Act are State bare minimum requirement and cannot be suspended by the Mayor.

I would be happier with the Mayor’s Proclamation if one also froze the destruction of records under the city’s retention policy. The fact that it does not and yet delays public access goes against public access laws, Public Record Act 6253.1 help the requester to succeed and Sunshine 67.1 (d) “government are doing is fundamental to democracy, and with very few exceptions, that right supersedes any other policy interest government officials may use to prevent public access to information.” Destruction is prevention.

The mayor’s Mayoral Proclamation Fifth Supplement - 6 (a) suspension of notice of special meetings is probably illegal as the Sunshine Ordinance and Brown Act already makes allowance for emergencies.

Sec 67.6 (d) If because of fire, flood earthquake or other emergencies follow these procedures for notice of special meetings The same with Brown Act 54954 (e).

Brown Act 54956 (2) “one hour prior to the emergency meeting, or, in the case of a dire emergency”

The Brown Act 54956.5 already defines “emergency situation” (1) “that severely impairs public health” so Brown act emergency procedures should be followed.

If executive order 7(e) were followed it would mean a requester could directly plea to the court which would lead to greater imposition on the city.

Thank You for your Time

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SOTF can Act as a Shield for the City

Having Sunshine Ordinance Task Force can both be a positive and a negative. The positive is it gives the public an easy low expensive way to address alleged violations.

In cities and counties without a task force a person must bring their complaint to the county Superior Court, but you get to first remind the city official that they will pay your attorney's fees should you be forced to sue and win to enforce your right to inspect the records. Here, you get to say you will take them to the Sunshine Ordinance Task Force and then maybe they may have to pay attorney and court costs. Court is a large barrier, but the task force adds another bump along the way. If the Task Force finds a violation and it is not remedied or the Task Force does not hear a complaint, then it puts a person in a more complex situation. In this way, the Task Force can actually shield the city from violations.

Section 67.36 say the Sunshine Ordinance supersedes other local laws. It does not say some or these local laws. It is important that public access laws be above local government manipulation. Public officials are elected to represent the public, but in 1999 the Sunshine Ordinance was also voted in by the public by 58%. It is important to have a strong independent Sunshine Ordinance or it can actually work in reverse to what it was intended.

Thank You for your Time

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Including the Sunshine Ordinance in the San Francisco City Charter is a Bad Idea and Probably Cannot Happen

(Not Submitted or Spoken at full SOTF Yet)

People should not want the Sunshine Ordinance in the San Francisco City Charter even if it could happen. The California Constitution “charter city” provision is located in Article XI Local Government, Section 3- 8 (specifically).

The benefit of becoming a charter city is that charter cities have supreme authority over “municipal affairs.” Supreme authority is where a municipality has the exclusive authority to regulate local affairs over state laws. So, you would not want the city of San Francisco to have supreme authority above the state or courts on the Sunshine Ordinance.

There are no benefits for the public between laws that are local general laws and those in a city charter.

The Sunshine Ordinance, Section 67.36., Sunshine Ordinance Supersedes Other Local Laws is a declaration that the Sunshine Ordinance is above local laws other than the provisions within it. Transparency and public access laws require independence from the government to be strong.

“Municipal affairs” are not specifically defined in the California Constitution. There are hints.

The provisions of Cal. Const., art. XI, § 7 provide that "a county or city may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws."

The provisions of Cal. Const., art. XI, § 5 (b) "It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: (1) the constitution, regulation, and government of the city police force (2) subgovernment in all or part of a city (3) conduct of city elections and (4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal, and for their compensation, and for the number of deputies, clerks and other employees that each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees."

Another reason it probably cannot happen is because public access laws like the Sunshine Ordinance are not "municipal affairs". Public access laws are of 'statewide concern'. The Sunshine Ordinance is an extension of state public access laws.

In Fisher v. City of Berkeley, 209 Cal. Rep. 682, 729, 37 Cal. 3d 644, 693 P.2d 261, 308 (S. Ct. 1984), the following statement was made about “municipal affairs” and “statewide concern”.

“Every California city possesses the general power to 'make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.' (Cal. Const., art. XI, § 7.) In addition, charter cities have even greater authority: they have exclusive power to legislate over 'municipal affairs.' (Cal. Const., art. XI, § 5, subd. (a).)”

"Whether a particular matter is of 'statewide concern' is another way of stating that the matter is preempted and conflicting local legislation is prohibited. Fisher recognized a three-part test to infer a legislative intent to preempt conflicting municipal enactments only where (1) the subject matter has been so fully and completely covered by general law as to clearly indicate it has become exclusively a matter of state concern, (2) the subject matter has been partially covered by general law stated in such terms as to indicate clearly a matter of paramount state concern which will not tolerate further or additional local action, and (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance outweighs the possible benefit of the law to the municipality."

Transparency in government and the public rights to access is written in the California Constitution Article I Declaration of Rights, Section 3., California Public Records Act and/or the Ralph M. Brown Act and the Sunshine Ordinance, which was voted into law. It is clear that the people’s right to know what their government is doing “has been so fully and completely covered by general law as to clearly indicate it has become exclusively a matter of state concern” and not a matter of “municipal affairs”.

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Entity or Other Body Question of Jurisdiction

(Submitted and Spoken at the July, 2021 meeting of the full SOTF).

Any entity or other body that is in question before the task force must be considered in relationship to government, public officials, public money and the entity’s goals. Not doing so ignores the elephant. You should not silo the entity. Requiring a department to be named in a complaint misses the point of jurisdiction. The question of public access is not protecting one entity over another, it is about government activity through an entity for government purpose regardless of whether they are shared with the entity. Government is to be open for all people.

Mayor’s Proclamation of a Declared Emergency Suspension of Sunshine Ordinance Provisions and SOTF Inconsistency

(Submitted and Spoken at the July 7, 2021 meeting of the full SOTF).

Changing subject, I want to point out to the task force that the Mayor’s proclamations and suspensions of various parts of the Sunshine Ordinance are still in effect to my knowledge. I notice the task force is still considering and finding on complaints on those suspended parts of the ordinance. In my opinion, they should be using The Brown Act or the CPRA where the incident of the complaint falls within the period of the suspension. Unless there is some memo or order that I am not aware of, there seems to be an inconsistency as to the task force implementation of what public access laws should be used and what city officials are using during this time of a declared emergency. I looked at some of the past agendas and there are complaints heard that would be affected. I am certain this will effect more complaint considerations going forward.

Public Information

(Submitted and Spoken at the August 8, 2021 meeting of the full SOTF).

You may want to include public information in a system-wide advisory. In SF Sunshine, it is defined and used for greater public access.

To note, I do have a complaint somewhere in the cue on “public information” and questions. Looking at Nextrequest, I see many public record requests being rejected because people are asking for information and using a question. This issue does not make it to a complaint with the task force but is often used for public record rejection.

“Public Information” is defined in 67.20 (b) as the content, whether documentary or oral communication. In 67.21 (a) (b) (c) it is used as “of any record or information” on par with each other. If the Sunshine Ordinance was simply written for access to records, it would have been written so and not include the use of the word information and defined it. So custodian of a public record should be required to furnish public information when requested as they do with records.

This is pretty much not universally realized by custodians and not well understood among requesters as a right they have. New requesters are often interested in information and form their request in that way. The requester often gets a rejection from custodians claiming they do not have to create a record. Here is one often used: “A request that a department create a response to a request for information or answer a series of questions is not a public records request, and neither the Public Records Act nor the Sunshine Ordinance requires a department to reply to a series of written interrogatories.”

This is a fundamental misunderstanding of the Sunshine Ordinance and should be made clear in a system-wide advisory.

This argument can be made in the CPRA since it starts with 6250 “In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” It uses the word information not records as being fundamental and necessary of every person in this state.

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