Public Records and a Side of Fries

Sandbagging a records request is a common dodge

by Sullivan

• • • • • • • • • • • • May 2023 • • • • • • • • • • • • 

H Have you ever felt like you have walked into a Monty Python or Saturday Night Live skit? You walk into a San Francisco government department to request a record, and — they hand you an ad for pet insurance. It could happen to you, and the Sunshine Ordinance Task Force (SOTF) is totally fine with this.

This is the second article in this get your popcorn series. The first was “Is the Sunshine Ordinance Task Force Ethically Challenged?”

Though each story can also be standalone. When we last left, the Sunshine Ordinance Task Force was tying itself in a “conflict of interest” knot to avoid making anything transparent and anyone accountable. Today, we flashback to the beginning of this story. It is so funny, it is sad.

I made what I thought was a simple “Immediate Disclosure Request” request to the San Francisco Department of Public Works for records on any person who had made an inquiry about starting a Green Benefit District (GBD) over two years, later reduced to 1 year. I also asked about any activities that Public Works had on GBD during the same period. The period was outside any of the prior requests I had made about GBDs. I was following up. I expected the request would produce zero - too very few records because I saw no public activity. I used an “Immediate Disclosure Request” because this section of the Sunshine Ordinance emphasizes the word “responsive” as in “shall produce any and all responsive public records” (AC §Sec. 67.25 (d))

That wording is lacking in the regular public record request section of the Sunshine Ordinance.

So just so you know how crazy this story is going to get, on the people inquiring about GBDs, I got only four responsive records (two were copies of the other two records) of one person asking about GBDs out of 1886 records that had nothing to do with GBDs including commercial advertisements. I got these four records a little over a year after my original record request. On the “any activities that Public Works had on GBD during the same time period” part of my request, I was told there were no records seven months after my record request.

You are not required to state the reason for your record request (Sunshine Ordinance §Sec. 67.25 (c)) Green Benefit Districts are a part of the San Francisco Administrative Code that allows for the creation of property owners assessed (taxed) “Benefit Districts” by establishing semi-nonprofit government entities. In the past, the city was pushing and funding GBD formation committees in non-transparent ways through (at the time) the Director of the Department of Public Works, Mohammed Nuru. What could possibly go wrong with that equation?

The Department of Public Works “custodian of records” is Mr. David Steinberg. All Department of Public Works employees must notify him of any record request, and he wants all record requests to go through a web app called NextRequest. This is partly the city trying to control the release of information. Mr. Steinberg follows his own public record request laws, which can deviate greatly from the SF Sunshine Ordinance and the California Public Record Act (CPRA). My request to find out if the city was still funding startup GBDs could have been asked as a simple question — that is allowed by the SF Sunshine Ordinance. The SF Sunshine Ordinance provides for requests to be answered orally, as information, or as a record.

Mr. Steinberg doesn’t allow any public record request that ends in a question mark or appears to be a question, even if there are responsive public records to the request. So, with him, you can get into wording your questions as statements as if you were part of a game show. Example of a public record request by someone in the news media regarding parklets that was thrown out by Mr. Steinberg.

It was clear from the beginning that Mr. Steinberg was playing games with the request. He said he found over 13,000 responsive records to my request and that it would take him over 4 years to produce. Records are digital now, so ¯\_(ツ)_/¯  He asked me to narrow my request, which I tried multiple times. Now, it was supposedly reduced to 7,500 emails. This back-and-forth went on for a bit. I asked him to “provide in writing within seven days following receipt of a request, a statement as to the existence, quantity, form and nature of records relating to a particular subject or questions with enough specificity to enable a requester to identify records in order to make a request” Sunshine Ordinance §Sec. 67.21 (c). This was done to help him and me reduce the number of records. He claimed that given the total amount of records that would be generated each time I made a suggestion suffices for giving a statement for me to narrow my request. “You will note, however, that we have already essentially provided to you such information when we notified you of the approximate number of emails responsive to your request.” Of course, this is not enough specificity to both narrow the request as he asks, nor does it comply with the law.

Not getting any help but intentional runarounds, I decided to find out how he was doing his searches. I made another public record request for search manuals and training on how public record searches were being done.

While I was getting this search information, Mr. Steinberg produced three records outside the dates of my original request and closed my record request stating: “In this case, the records are two year’s worth of emails, and Public Works finds that the public interest served by not disclosing the documents requests clearly outweighs the public interest in disclosing the records in light of the presence and availability of staff during the COVID restrictions to adequately and efficiently produce the requested documents and files. This determination also is based on the following: the voluminous nature of the request, your unwillingness to work with us to create reasonable search parameters that would allow us to deliver records to you in a timely manner.”

This is just turning everything on its head. My unwillingness to work with him to create reasonable search parameters? There was no difference in his staffing levels during Covid restrictions. A government official deciding what the public's interest is in government transparency?

The courts have upheld that there is no volume record limit. In Getz v. County of El Dorado, the Third District Court of Appeal overturned a trial court decision and found that the County of El Dorado was required to disclose over 40,000 records in response to a request made under the California Public Records Act (“CPRA”). If there was such a limit, city agencies could just inflate numbers to not produce records that are actually responsive to a request, as Mr. Steinberg is doing here.

I asked the Sunshine Ordinance Task Force (SOTF) administrator “to assist any person in gaining access to public meetings or public information” Sunshine Ordinance §Sec. 67.31, by requiring Mr. Steinberg to reopen the public record request even though, to my knowledge, this has never worked. It did not work here. I had to file a complaint with SOTF.

SOTF heard the complaint six months later. SOTF found that “Public Works violated CPRA, §Section 6253(b) by withholding all records in their entirety and orders the Respondent to resume production of records to the Petitioner and Administrative Code (Sunshine Ordinance, §Section 67.26) for withholding all records in their entirety.”

Mr. Steinberg claimed he would only have enough time to produce 20 records a week and would take at least two years. Mr. Steinberg’s primary job is to reply to public record requests. During the hearing, SOTF Member Schmidt said Steinberg should start producing records immediately and that I could narrow my request once I started seeing the records.

Sunshine Ordinance §Sec. 67.21 (e) “If the custodian refuses or fails to comply with any such order within 5 days, the Sunshine Task Force shall notify the district attorney or the attorney general who may take whatever measures she or he deems necessary to insure compliance with the provisions of this ordinance.”

Mr. Steinberg started producing public records 30 days after the SOTF order. I again tried to narrow my request only for Mr. Steinberg to say there were 8,586 items found. In the end, Mr. Steinberg produced 1886 records, including 234 commercial ads. The four responsive records were produced at the end of the record production. At various times, he claimed it would take him two to four years to produce the records. From the time he started producing records, it took him just a little over six months. What happened to the claim of 8,586 records, now only 1886? I guess he just ran out of steam and realized he was doing all this made-up “work” to hide four responsive records.

I tried to limit some records early, like saying "no ads," but it did not matter. He continued to produce ads and other records that had no mention of Green Benefit Districts. Mr. Steinberg looks at all public records before he makes them public. It was obvious from the start that Mr. Steinberg was making up “responsive” records. I decided to let the horse run for all he wanted.

I have an example of one of the responsive records on GBDs on my website. The other three are basically copies of this email exchange.

Burying responsive records in an avalanche of irrelevant or junk records is not uncommon. It goes against the core purpose of public access laws and government transparency. The CPRA has a very strong clause in it in:

§Sec. 6253 (d) “Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.” There is no echo of this in the San Francisco Sunshine Ordinance, a weakness in the law. Luckily, the CPRA says that it is the bare minimum for compliance.

Both laws state something similar to:

Sunshine Ordinance §Sec 67.21 (k) “Release of documentary public information, whether for inspection of the original or by providing a copy, shall be governed by the California Public Records 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.” CPRA 6253 (e).

The two laws can be read as one law, and whichever has the stronger provision should be what is enforced.

Since the voters of San Francisco adopted the Sunshine Ordinance in 1999 into the city’s administrative code, they demanded a higher standard of disclosure requirements and transparency from their city. It mandated that the Task Force would be fighting against any obstructing of public record disclosure. At least with the current iterations of SOTF, the task force rarely forces an agency to make records public within five days, as mandated by Sunshine Ordinance §Sec. 67.21 (e). Both the CPRA and San Francisco Sunshine Ordinance have a 10-day deadline for a public record request, with a 14-day extension in certain situations. You would think that SOTF would be interested in their Orders of Determination being followed after they have spent valuable time producing them. A member of the public who may be waiting months for their requested records. Still, SOTF loses interest in enforcing public record laws after their Order of Determination. City officials like Mr. Steinberg understand they can violate public access laws without repercussions.

In this public record request, Mr. Steinberg threw everything he could make up to violate the San Francisco Sunshine Ordinance and CPRA. In this article, I did not go into all the violations because it would be getting too much into the weeds, but I will touch on them in the next article. The next article is about what SOTF did when I submitted complaints about Mr. Steinberg’s obstruction and asked them to enforce the Sunshine Ordinance. It is comical but sad. They do not even seem to know their own by-laws, let alone the public access laws they are supposed to defend.

Sullivan runs the website sfneighborhoods.net committed to impowering citizens to promote transparency, democratic equality and to increase participation in their neighborhoods and government.

The Sunshine Ordinance Task Force can be contacted at sotf@sfgov.org. SOTF holds its meetings on the first Wednesday of each month. Agendas are posted at least 72 hours before at https://sfgov.org/sunshine/meetings/20

Sullivan runs the website sfneighborhoods.net/ committed to giving power to citizens to promote transparency, democratic equality and to increase participation in their neighborhoods and government.

May 2023