The new sunshine “problem”

Pub date November 14, 2006
SectionEditorialSectionNews & Opinion

EDITORIAL Matt Dorsey, who handles press for City Attorney Dennis Herrera, stopped by last week to talk to us about the barrage of public records requests that are coming in from one activist, Kimo Crossman, who is demanding so many records and so much information from so many departments that it’s costing the city big money.
The problem, Dorsey says, is a lot of the records that people like Crossman request (particularly if they have metadata, or hidden computerized information, embedded in them) have to be reviewed by a lawyer before they’re released to determine if any of the internal information might contain something confidential. The city typically accounts for its legal work at about $200 an hour — and already, Herrera’s office has spent hundreds of hours scouring records just to satisfy one aggressive gadfly whose sunshine activism is, we have to agree, sometimes rather scattershot. That’s a hefty taxpayer bill.
Dorsey’s done more for promoting open government than anyone who has ever worked for the Office of the San Francisco City Attorney, so we don’t dismiss his concerns. And we’ve said before and we’ll say again that the Sunshine Task Force needs to take up this issue, hold hearings, and make some policy recommendations.
Still, we had the same response we typically do when public records are at issue:
Why all the effort? Why the fuss? Just release the stuff. Give Crossman what he wants, and that will be the end of it.
Dorsey’s response: state law and state bar requirements mandate that attorneys, including municipal attorneys, carefully monitor all documents that might contain metadata and “at every peril to himself or herself” prevent any potentially confidential material from accidental release. “The lawyers in our office risk real penalties if they don’t carefully review every one of these requests, and that takes a lot of time,” Dorsey told us.
Well, if that’s a problem, the city and the state need to address it right now. Metadata is increasingly becoming part of government activities and will increasingly be part of public records requests by community activists. And there’s no reason that city employees, including city lawyers, should have to fear retribution if they make a good-faith effort to release information to the public.
Under state and local law everything the city government does is presumed to be public, unless it falls under one of a set of very narrowly defined exemptions.
But in San Francisco there’s been a culture of secrecy at City Hall that goes so far back and is so deeply inbred it’s hard to remove it from the political DNA. All sorts of deals are done behind closed doors. It’s considered perfectly acceptable to promise vendors bidding on public contracts that they can keep basic financial data secret. Every city official seems to think that every request needs legal review.
It’s ridiculous — and the supervisors, the mayor, and the city attorney should take some basic steps to end it.
For starters, the supervisors should pass a clear policy statement that says no city employee shall face any disciplinary action of any sort stemming from a good-faith effort to release information to the public. Herrera should tell his lawyers the same thing: nobody gets in trouble for handing out information.
Yes, there are sensitive documents, particularly in the City Attorney’s Office — but overall, the risk to the city of a mistaken release of confidential information is far, far lower than the risk (and the cost) of continuing this deep culture of confidentiality.
If that creates a problem with the state bar, Assemblymember Mark Leno should introduce a bill that eliminates any penalties or consequences for public agency lawyers who, in good faith, allow the release of public information that may unintentionally include confidential material.
Meanwhile, Crossman has a good idea: why not create a publicly accessible database that gets automatic copies of every document created at City Hall (unless there’s a damn good reason to mark it secret)? That way the busiest of the advocates can spend their time searching the files on their own, and the lawyers can go back to fighting Pacific Gas and Electric Co. SFBG