File No. 19120 SUNSHINE ORDINANCE TASK FORCE AGENDA PACKET CONTENTS LIST Complaint Committee Date: September 15, 2020 D Petition/Complaint Page:~(<1 D Memorandum - Deputy City Attorney Page:-(g (.o?,, D Petitioner/Complainant Supporting Documents Page: \?l l\ D Respondent's Response Page: '::f? ':\­ D Public Correspondence Page:_ D Order of Determination Page:_ D Minutes Page· LJ Administrator's Report Page:_ D No Attachments OTHER D D D D D D D D D Completed by: __c_._L_e~g~e_r _________Date 9/10/20 *An asterisked item represents the cover sheet to a document that exceeds 25 pages. The complete document is in the file. P659 I (BOS) From: Google Forms <[email protected]> Sent: Wednesday, November 13, 2019 8:28 PM To: SOTF, (BOS) Subject: New Response Complaint Form This message is from outside the City email system. Do not open links or attachments from untrusted sources. Your form has a new entry. Here are the results. Complaint against which Office of City Attorney Department or Commission Name of individual contacted ind iv respondents: City Attorney Dennis Herrera, Moira Walsh, Jana Clark, Wayne Snodgrass, Andrew Shen, at Joshua White, Brad Russi, David Ries, Alicia Cabrera, Paul Zarefsky, Buck Delventhal, Scott Minty, Joy Perez, J Department Givner, Elizabeth Coolbrith, Odaya Buta or Commission Alleged Public Records Violation Sunshine SFAC 67.21(b,c), 67.26, 67.27: failed to respond to a request for public records in a timely or complete mann Ordinance · failed to assist, withheld more than the minimally exempt portion of a public record, and failed to justify Section: withholdings with clear reference to exemption statute or case law PG60 Please See attachment from [email protected]: describe https ://cd n. m uckrock.com/ outbound reg uest attach me nts/94383620Ano nymous/80695/vs20City20Atto rr alleged 20Adachi20Carmody20Records20-20COMPLAINT HlaEPBK.pdf violation Name Anonymous Email 80695-54486849@req uests. m uckrock.com If anonymous, please let us know [email protected] how to contact you.Thank you. Sent via Google Forms Email CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY DENNIS J. HERRERA· PEDER J. V. THOREEN City Attorney Deputy City Attorney Direct Dial: I415) 554-3846 Email: [email protected] MEMORANDUM PRIVILEGED AND CONFIDENTIAL TO: Sunshine Ordinance Task Force FROM: Peder J. V. Thoreen Deputy City Attorney DATE: January 13, 2020 RE: Complaint No. 19120: Anonymous v. Office of the City Attorney, et al. COMPLAINT An anonymous complainant ("Complainant") alleges that San Francisco City Attorney Dennis Herrera, Moira Walsh, Jana Clark, Wayne Snodgrass, Andrew Shen, Joshua White, Brad Russi, David Ries, Alicia Cabrera, Paul Zarefsky, Buck Delventhal, Scott Minty, Joy Perez, Jon Givner, Elizabeth Coolbrith, and Odaya Buta (collectively, "Respondents"), violated the Sunshine Ordinance by failing to respond to Complainant's requests in a timely and complete manner. COMPLAINANT FILES COMPLAINT Complainant filed this complaint with the Task Force on November 13, 2019, specifically alleging that Respondents violated Administrative Code sections 67.2l(b, c), 67.26, and 67.27. JURISDICTION Respondents are subject to the Sunshine Ordinance and the California Public Records Act ("CPRA"). Respondents do not dispute jurisdiction. APPLICABLE STATUTORY SECTIONS Section 67. of the San Francisco Administrative Code: • Section 67.21 governs responses to a public records request in general. • Section 67 .26 provides that withholding of public records shall be kept to a minimum. • Section 67 .27 sets f01ih requirements for justifying the withholding of information. Cal. Government Code (CPRA) • Section 6253 sets forth the general requirements for the production of records. e Section 6254 sets forth exemptions from disclosure under the.CPRA. Fox PLAZA . 1390 MARKET STREET, 7TH FLOOR . SAN FRANCISCO, CALIFORNIA 94102-5408 RECEPTION: (415) 554-3800 · FACSIMILE: (415) 437-4644 n:\codenf\as2019\9600241 \01419005.docx P662 CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY MEMORANDUM PRIVILEGED & CONFIDENTIAL TO: Sunshine Ordinance Task Force DATE: January 13, 2020 PAGE: 2 RE: Complaint No. 19120: Anonymous v. Office of the City Attorney, et al. APPLICABLE CASE LAW " City ofSan Jose v. Superior Court (2017) 2 Cal.5th 608 (holding that when a city employee uses a personal account to communicate about public business, the writings may be subject to disclosure under the CPRA). " Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282 (holding that while attorney billing records of a public agency are not categorically exempt from disclosure under CPRA section 6254(k), they may be privileged where the content of the invoices reveal anything about legal consultation, and the privilege encompasses everything in an invoice regarding a matter that remains pending and active). " St. Croix v. Superior Court (2014) 228 Cal.App.4th 434 (holding that San Francisco's City Charter establishes an attorney-client relationship between the City Attorney and City agencies, and that attorney-client privileged communications in the contextof this relationship are not required to be disclosed under the Sunshine Ordinance). BACKGROUND On September 20, 2019, Complainant submitted a document request seeking from Respondents 30 categories of documents related to the keyvvords "adachi," "carmody," and "North Bay News." Complainant initially also requested documents using the keyword "public defender," but on September 26, 2019, Complainant and Respondents reached an agreement that Complainant withdraw that request. Complainant instead made an additional set of requests with the keyword "shield law." Although the requests sought metadata associated with these documents, Complainant clarified in a filing with the Task Force on November 13, 2019, that the present complaint raises no metadata issues. · · Respondents contend that they produced a statement pursuant to Administrative Code section 67.21(c) on September 30, 2019. See infra. Complainant contends that this response was untimely. See Admin. Code section 67.21(c) (requiring a written response within seven days). Respondents contend that they required an additional business day in order to provide a response consistent with Complainant's modified request. Complainant further contends that the statement was insufficient because, when stating that certain documents were withheld on the privilege grounds, Respondents were at least required to state the quantity of documents withheld under St. Croix v. Superior Court (2014) 228 Cal.App.4th 434. Relying primarily on Los Angeles County Ed. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, Respondents contend that doing so would reveal privileged information. After requesting an extension for the production of documents, Respondents eventually produced over 2,000 documents. Complainant contends that the production was incomplete. First, Complainant contends that certain documents related to a paiiicular employee were n:\codenf\as2019\9600241101419005 .docx P663 CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY MEMORANDUM PRIVILEGED & CONFIDENTIAL TO: Sunshine Ordinance Task Force DATE: January 13,2020 PAGE: 3 RE: Complaint No. 19120: Anonymous v. Office of the City Attorney, et al. withheld. Respondents contend that their production included this employee's responsive documents. Next, Complainant raises the following objections: 3-1. Some or all records claimed to be privileged. Respondents Herrera, Coolbrith, and Office of the City Attorney previously incorrectly asserted attorney-client and work-product privilege over.certain records in 19095 Anonymous v. Herrera, et al. and did not provide the (not genuinely privileged) records until complaints were proceeding so I have no reason to believe they have correctly asse1ied privilege this time either. Specifically, at least the following types of records cannot be so privileged and should be deemed public: 3-1-a. Records not written by an attorney, and not written by a client asking for legal advice 3-1-b. Records written by an attorney, but without any client being involved and without any legal interpretation (such as objective gathering of facts) 3-1-c. Records for which privilege has been waived by inclusion of any party on the thread who is neither a client nor an employee of the City Attorney's office (such as, but not limited to, Carmody or his attorneys, or any other journalist, of any· other records requestor) 3-1-d. Records for which exemption was previously waived by production to any other record requestor 3-2. Pg. 6, 7 redactions - this cannot be personal or health information. It could be some other exemption that has been failed to be cited. 3-3. Pg. 8, 9 redactions - business emails cannot be exempt, nor the identity of the recipient. Also Respondents disclosed Mr. Burke's business email address on pg 10 and many other places anyway. 3-4. Pg. 61, 63 - 2nd redaction only - you hid the email address and the name. 3-5. Pg. 77, 99 redaction - not sure what this could be 3-6. Pg. 224, 228, 230, 235, 237, 240, 243, 235, etc. - redaction hides both name and email address 3-7. Pg. 264 - all redactions, unclear what has been redacted 3-8. Pg. 406-409 - almost all of this document is redacted and all of it is challenged n:\codenf\as2019\9600241\01419005 .docx P664 CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY MEMORANDUM PRIVILEGED & CONFIDENTIAL TO: Sunshine Ordinance Task Force DATE: January 13, 2020 PAGE: 4 RE: Complaint Nc:i. 19120: Anonymous v. Office of the City Attorney, et al. 3-9. Pg. 410-415 - almost all of this document is redacted and all of it is challenged · 3-10. Pg. 418, 420, 422, 424, 426, 428, 430, 432, 434, 436 - I was provided small portions of very large images. The rest of the image was withheld without justification. 3-11. Pg. 451 - all redactions challenged, incl the incident number 3-12. Pg. 4 77-480 - hyper link urls in the mayor's newsletter withheld without justification 3-13.