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Complaint Filed by Thomas Busse

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Complaint Filed by Thomas Busse File No. --------18013 Item No.7-------- SUNSHINE ORDINANCE TASK FORCE AGENDA PACKET CONTENTS LIST Sunshine Ordinance Task Force Date: August 1, 2018 rn Petition/Complaint Page: t;DJ.... Memorandum - Deputy City Attorney Page:-5Q(,o ~ Petitioner/Complainant Supporting Documents Page:.!l=t' ~ Respondent's Response Page:_:i_\'1,_., D Public Correspondence Page:_J D Order of Determination Page:_ D Minutes Page:_ D Administrator's Report Page:_ D No Attachments OTHER D D D D D D D D D Completed by: _ ___::::C;.:..... =Le=g=e"-'-r ______Date 07/25/18 *An asterisked item represents the cover sheet to a document that exceeds 25 pages. The complete document is in the file. P501 ~.,-) .\ :··- '.I••· .r'• , .•• : .. , .. ·.·.. :) Thomas J. Busse 1 1 584 Castro Street #388 '"",..,or<·~; ..:} 1 :c.Lt 1 "J p·!\"1 L·''· '4 i' San Francisco, CA 94114 415-244-5072 [email protected] December 2, 2017 ~ •' . Bruce Wolfe Sunshine Ordinance Task Force City Hall Room 244 San Francisco, CA 94103 Re: Complaint regarding SFPUC's failure to produce Public Records, in Violation of the Administrative Code and against the City Attorney for acting as legal counsel for a city employee for purposes of denying access to a public record. Dear Members of the Task Force: On October 6, 2017, I made a request of the San Francisco Public Utilities Commission to disclose the "Emergency Action Plans" in its possession of SFPUC water resources facilities (ie. Emergency plans of what to do if a SFPUC dam failure is imminent- something of considerable concern and risk and worthy of citizen oversight). On October 30, I received a response from the SFPUC declining to provide these public records. Their response is enclosed. This is an official complaint that they had no grounds to decline, and they were advised to do so by the City Attorney, as they disclose. Thus, I ask the Task Force to find an SFPUC violation of Section 67.24(g) and 67.24(i) for failure to disclose a public record or records without meeting the standard specified in section 67.27 and a City Attorney violation of 67 .21(i) for acting as legal counsel to the SFPUC for denying access to a public record. The SFPUC complied with Sunshine ordinance Section 67.27 (Justification of withholding) to the extent that the SFPUC cited the specific statutory authority for a permissive exemption. However, the SFPUC's justification was deficient for the following reasons: • The statutory authority cited was not part ofthe California Public Records Act, which is codified as Government Code Section 6250-6276. Instead, the statutory authority is much later in the Government code and is part ofthe California Emergency Services Act (section 8550-8668), which refers to the CPRA with this specific text: o Nothing in Chapter 3.5 {Commencing with Section 6250) of Division 7 of Title 1 [The California Public Records Act] shall be construed to require disclosure of an emergency action plan. • The statutory authority was not a "prohibition" in the manner of Sunshine Ordinance 67.27(b). It was an exemption. Therefore the justification for withholding must have stemmed from 67.27(a), which only justifies permissive exemptions not forbidden by the sunshine ordinance. • Although the statutory authority was an exemption, it was not a permissive exemption. Sunshine ordinance 67.27(a)-only allows justification for withholding based on permissive exemptions. P502 The key difference is a permissive exemption is something discrete within the CPRA- namely, part of Chapter 3.5 ofthe Government Code (the 6000's) and thus applies to local agencies covered by the CPRA. Had the author of SB 92, adding Govt. Code 8589.5(e) to the Emergency Services Act wished to create a permissive exemption, then SB 92 could have amended the CPRA. Instead, the author of SB 92 merely added Govt. Code 8589.S{e) in the 8000's to avoid expanding permissive exemptions beyond the scope of SB 92- in other words, avoiding the risk that this exemption in the context ofthe CPRA {the 6000's) could be interpreted too broadly and applied to a broader class of public records by all local agencies. The specific intent of SB 92 was to exempt the State's office of Emergency Service from disclosing emergency action plans in its possession prepared by local agencies and submitted to it. Important to recognize, exemption is not a requirement, only an option. To summarize: exemption in the 6000's =permissive exemption for all agencies; exemption in the 8000's or elsewhere= exemption only applicable to state agencies. • The sunshine ordinance forbids the exemption cited from being asserted per Section 67.24- part of the broader scope of the sunshine ordinance -and thus the SFPUC had no authority to justify invocation of 67.27{a): o 67 .24{d) prohibits certain records for law enforcement information to be exempted from disclosure. The Emergency Action Plan described in 8589.5{2) states "IGcal public safety agencies may adopt emergency procedures that incorporate information contained in an emergency action plan." In other words, if there is a state of emergency and a dam failure is imminent, a new crime and enforcement action is permitted. The public has a right to know what the law is. Furthermore, the Action Plan cited in 8589.5{d){2){G) indicates it will include "identification of particular areas or facilities in the flood zones that will not require evacuation because of their location on high ground." So how could 67.27{d) possibly consider the information "where high ground actually is" when the police say to "get to it" and threaten arrest if you don't as somehow "clearly and substantially outweighing the public interest in disclosure?" per 67.27{d). Is their plan when the substandard concrete around sunset reservoir fails to hand out plumb lines? What about 8589.5(d)(2){H) "Identification and development of procedures for the evacuation and care of people with access and functional needs and for the evacuation of specific facilities such as schools, hospitals, skilled nursing facilities and other facilities as deemed necessary?" Is the public interest in disclosure outweighed by the SFPUC's CYA plan that the SFPD have no intention of coming for grandma? • Section 27.27{i) prohibits assertion of a CPRA exemption under section 6255 "or any ·similar provision as the basis for withholding any documents or any information requested under this P503 ordinance." The sunshine Ordinance's prohibiting invocation Section 6255 in the CPRA is the heart of my complaint: it creates the "public interest is served by disclosure" exemption asserted by the SFPUC that is expressly prohibited by Section 67.27(i) of the administrative code. The SFPUC refers to "heightened security" and a Federal Court Case called Living Rivers. First, Federal law does not interpret the CPRA or the Sunshine ordinance, so it does not set precedent in interpreting Section 6255 of the CPRA. Second, it's a case from the US District Court from the District of Utah- not Ninth Circuit- so it sets no precedent over the SFPUC or City Attorney. Third, it interprets the federal Freedom of Information Act. The CPRA and San Francisco Sunshine Ordinances are more permissive than the FOIA, and the principal that local law and state constitutions or laws can establish rights or freedoms broader than the analogous Federal rights is well established through Pruneyard Shopping Center v. Robins, 447 U.S. 74 {1980), a Federal Supreme Court case that does apply to California. Two can play at the fancy legal citation game .... • How can withholding the following components of an Emergency Action plan be a compelling public interest outweighed in the name of "heightened Security:" o The Response Process 8589.5{3)(A) o Preparedness Activities and Exercise Schedules 8589.5(3)(D) o Any Additional information that may impact life or property 8589.5(3)(F) o Methods and procedures for alerting and warning the public 8985.5.(2)(A) o Delineation of the area to be evacuated 8985.5.(2)(B) o Routes to be used C o Traffic Control Measures (D) o Shelters to be activated (E) o Methods for the movement of people without their own transportation (F) o Location of high ground (G) o Evacuating people with disabilities (H) o Procedures for Interior and perimeter security (IK) o Procedures for lifting the evacuation and reentry {J) o Details as to which organizations are who are responsible for a safe evacuation (K) Further down in my records request it is disclosed by the SFPUC it was the City Attorney who advised withholding these public records, citing privilege. This is a violation of 67.20{i) because the SFPUC refused to disclose a communication concerning the Sunshine Ordinance. The Sou less Deputy City Attorney who advised the SFPUC to withhold information about the SFPUC's emergency preparedness in the event of dam failures endangering human life with bogus legal advice should be ashamed and referred to Ethics. The "heightened security" refers to the job security of incompetent and unprepared public safety officials who ought to move to the Lower Ninth Ward. The City Attorney's job is to "protect and secure the rights of Citizens" to this information. And to drive the point home: emergency action plans for dam failures in the State of Massachussets are expressly required to be posted on the internet: https://www.cambridgema.gov/Water/watershedmanagementdivision/sourcewaterprotectionprogram /emergencyresponse/emergencyactionplan P504 To Conclude: In an age of global warming, extreme weather events pose significant risks to public water resources infrastructure, and there is no public interest in denying the public access to information about the disaster plans and preparation of their governments.
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