Allen Grossman and Kimo Crossman vs. Ms. Gloria Young, Clerk of the Board of Supervisors

Violation

*=Initial, +=Ongoing

Legal Authority

Clerk refused to provide document*+

67.21. Process For Gaining Access To Public Records; Administrative Appeals(a) Every person having custody of any public record or public information, asdefined herein, (hereinafter referred to as a custodian of a public record) shall, atnormal times and during normal and reasonable hours of operation, withoutunreasonable delay, and without requiring an appointment, permit the publicrecord, or any segregable portion of a record, to be inspected and examined by any person and shall furnish one copy thereof upon payment of a reasonable copyingcharge, not to exceed the lesser of the actual cost or ten cents per page.

Clerk refused to provide document within thetimeframes outlined*Clerk refused to provide any legal citations justifying the withholding under the express provisions of the ordinance*

67.21. Process For Gaining Access To Public Records; Administrative Appeals(b) A custodian of a public record shall, as soon as possible and within ten daysfollowing receipt of a request for inspection or copy of a public record, complywith such request. Such request may be delivered to the office of the custodian bythe requester orally or in writing by fax, postal delivery, or e-mail. If the custodian believes the record or information requested is not a public record or is exempt,the custodian shall justify withholding any record by demonstrating, in writing assoon as possible and within ten days following receipt of a request, that the recordin question is exempt under express provisions of this ordinance.

Clerk refused to provide the MS Wordelectronic format version of this document*+

67.21. Process For Gaining Access To Public Records; Administrative Appeals(l) Inspection and copying of documentary public information stored in electronicform shall be made available to the person requesting the information in any formrequested which is available to or easily generated by the department, its officersor employees, including disk, tape, printout or monitor at a charge no greater thanthe cost of the media on which it is duplicated. Inspection of documentary publicinformation on a computer monitor need not be allowed where the informationsought is necessarily and inseparably intertwined with information not subject todisclosure under this ordinance. Nothing in this section shall require a departmentto program or reprogram a computer to respond to a request for information or torelease information where the release of that information would violate a licensingagreement or copyright law.

Clerk refused to provide the Original or a copyof the Original MS Word document*+

67.21. Process For Gaining Access To Public Records; Administrative Appeals(k) Release of documentary public information, whether for inspection of theoriginal or by providing a copy, shall be governed by the California PublicRecords Act (Government Code Section 6250 et seq.) in particulars not addressed by this ordinance and in accordance with the enhanced disclosure requirements provided in this ordinance.

Clerk refused to use computer technology to provide documents as requested – only offeringthem in a new denatured PDF format, resultingin wasted city resources*+Clerk refused to use low cost and free softwaretools to redact legitimately exempt information potentially recorded in the metadata*+

67.21-1. Policy Regarding Use And Purchase Of Computer Systems(a) It is the policy of the City and County of San Francisco to utilize computer technology in order to reduce the cost of public records management, includingthe costs of collecting, maintaining, and disclosing records subject to disclosure tomembers of the public under this section. To the extent that it is technologicallyand economically feasible, departments that use computer systems to collect andstore public records shall program and design these systems to ensure convenient,efficient, and economical public access to records and shall make public recordseasily accessible over public networks such as the Internet.

Clerk refused to provide MS Word electronicversion of document which is its originalelectronic format*+

67.21-1. Policy Regarding Use And Purchase Of Computer Systems(b) (2) Implementing a system that permits reproduction of electronic copies of records in a format that is generally recognized as an industry standard format.

Violation

*=Initial, +=Ongoing

Legal Authority

Clerk refused to provide any legal citations justifying withholding of the document at thetime of the request*Clerk refused to provide findings showing thatthe public interest in withholding the documentoutweighed the public interest in disclosure*+

67.24. Public Information That Must Be Disclosed(i) Neither the City, nor any office, employee, or agent thereof, may assert anexemption for withholding for any document or information based on a finding or showing that the public interest in withholding the information outweighs the public interest in disclosure. All withholdings of documents or information must be based on an express provision of this ordinance providing for withholding of the specific type of information in question or on an express and specificexemption provided by California Public Records Act that is not forbidden by thisordinance

Clerk refused to provide a minimally redactedversion of the document*+Clerk refused to provide any appropriate justifications for withholding information*+Clerk refused to use low cost and free softwaretools to redact legitimately exempt information potentially recorded in the metadata*+

67.26. Withholding Kept To A Minimum No record shall be withheld from disclosure in its entirety unless all informationcontained in it is exempt from disclosure under express provisions of theCalifornia Public Records Act or of some other statute. Information that is exemptfrom disclosure shall be masked, deleted or otherwise segregated in order that thenonexempt portion of a requested record may be released, and keyed by footnoteor other clear reference to the appropriate justification for withholding required bysection 67.27 of this article. This work shall be done personally by the attorney or other staff member conducting the exemption review. The work of responding to a public-records request and preparing documents for disclosure shall be considered part of the regular work duties of any city employee, and no fee shall be chargedto the requester to cover the personnel costs of responding to a records request.

Clerk refused to provide any legal citations justifying withholding of the document*

67.27. Justification Of WithholdingAny withholding of information shall be justified, in writing, as follows:(a) A withholding under a specific permissive exemption in the California PublicRecords Act, or elsewhere, which permissive exemption is not forbidden to beasserted by this ordinance, shall cite that authority.(b) A withholding on the basis that disclosure is prohibited by law shall cite thespecific statutory authority in the Public Records Act or elsewhere.(c) A withholding on the basis that disclosure would incur civil or criminal liabilityshall cite any specific statutory or case law, or any other public agency’s litigationexperience, supporting that position.

Doug Comstock, SOTF Chairperson, EricaCraven, Vice Chairperson and a majority of theCompliance and Amendments committeeinstructed Linda Wong (acting SOTFAdministrator) to provide the MS Word formatof the document. Subsequently, Gloria Younginstructed Linda Wong to refuse to perform theSOTF administrative request*+

67.31. Responsibility For AdministrationThe Mayor shall administer and coordinate the implementation of the provisionsof this chapter for departments under his or her control. The Mayor shalladminister and coordinate the implementation of the provisions of this chapter for departments under the control of board and commissions appointed by the Mayor.Elected officers shall administer and coordinate the implementation of the provisions of this chapter for departments under their respective control. TheClerk of the Board of Supervisors shall provide a full-time staff person to performadministrative duties for the Sunshine Ordinance Task Force and to assist any person in gaining access to public meetings or public information. The Clerk of the Board of Supervisors shall provide that staff person with whatever facilitiesand equipment are necessary to perform said duties.

Violation

*=Initial, +=Ongoing

Legal Authority

Clerk has adopted an unwritten policy regardingdisclosure of certain electronic formats of publicrecords without broadly construing the people’sright to access to information and narrowlyconstruing limits to access of this information*+

California Constitution, Prop 59:Affects how most statutes and other rules are to be interpreted.Those not dealing with personal privacy, while not "repealed or nullified," may be"superseded or modified." In particular,

"A statute, court rule, or other authority,including those in effect on the effective date of this subdivision, shall be broadlyconstrued if it furthers the people's right of access, and narrowly construed if it limits the right of access."

When, in other words, there is room for doubt as to the required scope of disclosure vis-à-vis the permitted scope of non-disclosure, the doubt must beresolved in favor of disclosure. For example, where the Brown Act permits butdoes not require a closed session for certain discussions, or where the CaliforniaPublic Records Act permits but does not require the withholding of certaininformation, the practice of treating that rule as a license for routine, invariablesecrecy rather than an allowance for discretionary confidentiality to avoid certainharm may be subject to attack.Equally, a practice of stretching occasions for excluding or not informingthe public to cover all related information just because it is somehow related may be likewise vulnerable. If an exception to the Brown Act's rule of access has aclearly defined purpose such as keeping a litigation or bargaining adversaryuninformed as to the facts known to a public agency or its position on a givenissue, that purpose is not served by keeping the public ignorant of what theadversary already knows, or of information it has itself communicated to theagency. If the purpose of confidentiality of law enforcement investigations is toavoid educating a suspect or perpetrator as to the evidence and witnesses beingaccumulated against him, her or it—to preserve the government's advantage of surprise in developing a case—that purpose is not served by keeping case recordsentirely secret long after the case is closed by successful prosecution, or once thestatute of limitations has run.Interpreting limits to the right of access narrowly means using discretionaryconfidentiality judiciously, to protect what must be protected and avoid whatneeds to be avoided, to the extent necessary—but no more than that.

Clerk did not adopt its unwritten policyrestricting access to certain formats of electronic public records with findings demonstrating theinterest to protect such a limitation*+

California Constitution, Prop 59:Prop 59 affects how new limitations on access are to be justified.It states, "A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findingsdemonstrating the interest protected by the limitation and the need for protectingthat interest." This requirement applies not only to the Legislature, JudicialCouncil and regulatory agencies but to any level of government creating a policyor procedure that limits access to meetings of government bodies, or to records of government officials or agencies. The phrase "findings demonstrating" refers tofactual determinations, not simply expressions of opinion or preference. What isthe public interest to be protected? Why is this approach (as opposed to others)the necessary one? What experience demonstrates these conclusions?

Clerk refused to provide an exact copy of theelectronic record requested*+

Cal. Gov't. Code Section 6253(b):The Public Records Act provides that "[e]xcept with respect to public recordsexempt from disclosure by express provisions of law, each state or local agency,upon a request for a copy of records that reasonably describes an identifiablerecord or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. "Upon request, an exact copy shall be provided unless impracticable todo so."