EDITORIAL The California Public Records Act needs an update. So does the state’s Brown Act, which mandates open meetings of government bodies, and the San Francisco Sunshine Ordinance. These are the landmark laws that keep government from operating in secret — but all were written long before the explosion of information technology profoundly changed the way city, state, and local agencies compile, sort, process, present, and preserve information.
And now, with agencies at every level trying to use information technology to hide data from the public and courts struggling with laws that didn’t anticipate the modern era, open-government advocates need to be working on every level to protect and expand access.
As we point out in this issue, technology can be used to spy, to hide, and to obfuscate — but it can also be used to make the operations and processes of the public sector far more open and accessible. Properly used, today’s information technology can vastly improve the way governments work — and it’s neither difficult nor expensive to make that happen.
The state Legislature, the San Francisco Board of Supervisors, and the Sunshine Task Force should be looking at ways to make sure that computers don’t increase secrecy — and to take advantage of the opportunities modern technology offers.
The Brown Act, passed in 1954, forbids public agencies from meeting in secret, except in very limited circumstances. The San Francisco Sunshine Ordinance goes further. The laws have been interpreted to mean that the members of a board or commission can’t use e-mail to discuss pending business; that would amount to a closed-door meeting. That same interpretation ought to apply to members participating in discussions on, say, a Yahoo! news group. Deliberations on a policy matter would be taking place outside of public view.
But what if the public was invited? What if a virtual discussion took place before or between traditional meetings — and any member of the public could log in from anywhere (work, home, the public library, terminals in City Hall) and watch? What if people — who are now allowed only a minute or two to comment in public meetings — were able to post longer, more detailed comments that policymakers would see during online discussions? What if the entire record of that meeting were instantly available on the Web, in a searchable form?
Would that be an increase in public access? What about the large number of people who still don’t have computers or Web access — would they be left out?
That’s just one of the questions sunshine advocates are talking about. Legislators need to be addressing the issues, too.
As Kimo Crossman reports on page 14, increasing public access doesn’t have to be difficult or expensive — in fact, there are ways to save the city money. One obvious idea: almost every document that’s produced by a city employee, including e-mail, is already considered a public record. Why not simply program the computers to make an instant copy of everything and post it to a public Web site? That way someone looking for memos from, say, the Public Utilities Commission addressing solar energy could simply search that site with those key words and come up with all of the records quickly.
That would save time for journalists and citizen watchdogs who now have to request those records from the agency — and it would save money for the city. If the documents were all searchable for anyone, there would be no need to spend time and money responding to public-records requests.
It wouldn’t be hard at all to add a "possibly confidential" key to records, preventing documents that really should remain secret from going into the public file. And the computers could automatically generate a list of the documents being withheld, so the public could find out what records are remaining out of view.
Over time, old paper records could be scanned and put on the site, too. And with electronic storage so cheap these days, there’s no reason why all public records can’t be preserved in an accessible form and location.
The County of Santa Clara a few years back began putting together a valuable data trove that included all of the county’s real estate and property ownership records. That allowed for the creation of a geographic information system that could be used to track property sales, taxes, crime rates, building permit applications, and much more. A wonderful public service — except that the county didn’t offer it to the public. The data was for sale, for more than $100,000 a license.
It took a lawsuit by the California First Amendment Coalition to force the county to back off and make the data public. But that’s just an example of a trend that’s cropping up all over the country: governments are developing ways to make more use of information — and then are trying to copyright it, sell it, and make money.
The problem with that, as attorney Rachel Matteo-Boehm, who handled the CFAC case, points out, is that it segregates access to information by wealth. The rich get the tools of technology to understand and use public data; the poor don’t.
It’s a dangerous trend and the Legislature should address it right away. Information created by public agencies using public data should be public — no excuses, no exceptions. And if the software that makes it easy to process that information is created by the public sector (or under contract to the public sector) the public needs free access to it.
The Legislature also needs to shoot down a series of attempts by the secrecy lobbyists to cut off access to new types of data. A bill now before the Assembly, AB 1978 by Assemblymember Jose Solorio (D-Anaheim), would exempt certain types of information from the Public Records Act. The bill appears to be aimed at overturning the Santa Clara decision but could also address an issue that has come up in San Francisco: that of so-called metadata in public documents.
Metadata is embedded information that may be in a file that doesn’t appear when the file is printed out. The City Attorney’s Office has been arguing that metadata isn’t public. That’s nonsense — it’s part of a public document, created at public expense by public employees. The Legislature needs to reject this bill — and instead pass a law that would specifically require agencies to release any internal data that’s created as part of a public record.
The San Francisco Sunshine Task Force is in the process of updating and improving the city’s landmark law, and it should seek to incorporate some of the suggestions above.
The Task Force also needs to be sure that the amendments to the law give that oversight body the teeth it needs to enforce public-access requirements. Far too often, city officials simply ignore task force findings, and, as Sarah Phelan reports on page 17, the Ethics Commission and the district attorney rarely follow up with sanctions.
For starters, the task force should have the right to subpoena documents and witnesses (without first asking the supervisors for approval — a cumbersome process). The panel should have its own full-time legal counsel. It should also have increased enforcement power: while giving the task force the right to levy fines and sanctions is politically tricky, a provision that allows the task force to order the release of documents — backed up with the full support of the City Attorney’s Office — ought to be part of the final package.