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Proposition B’s poison pill

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(Rachel Garner/2016 Special to the S.F. Examiner)

Prop. “B,” billed as a “Privacy First Policy,” will be added to the City Charter as new Section 16.130 if passed by voters. Prop. “B” isn’t necessary. The Board of Supervisors can enact personal-data privacy laws right now independent of the City Charter, without voter approval.

Had drafters of Proposition “B” stuck to simply providing privacy protections, I would fully support it.

But the drafters introduced a poison pill in the legal text of this City Charter change. I’m strongly urging readers vote “No on B.”

Unfortunately Prop. “B” only sets guidelines for enacting a data-protection law and sets a deadline, but the privacy protection language isn’t being voted on November 6. The legal text of Prop. “B” requires that the City Administrator propose an ordinance by May 31, 2019 for future consideration by the Board of Supervisors to establish criteria and rules to protect privacy the City shall adhere to.

The intent of Prop. “B” is intended to provide guidance to the City when considering the adoption of privacy-protection laws, regulations, policies, and practices, mainly involving collection and retention of “personal information” such as an individual’s name, social security number, address, telephone number, driver’s license or state identification card number, credit card number, and other categories of personal information.

Prop. “B” would hand the Board of Supervisors authority to develop an Ordinance to implement privacy principles as it deems appropriate — in its sole discretion — imposing the principles on any or all City boards, commissions, departments, and officials. That means voters won’t have a chance to weigh in at the ballot box on the privacy principles eventually adopted.

Unfortunately, §160.130(h) of the Privacy First Policy indicates the underlying principles are not binding on, or self-executing, but rather are intended as a guide to City boards, commissions, and departments. In other words, because the principles aren’t binding, City boards, commissions, and departments may have an opt-out option.

There’s a nasty poison pill in Prop. “B”: §160.130(i) reads, in part: “Notwithstanding any other provision of the Charter, the Board of Supervisors is authorized by ordinance to amend voter-approved ordinances regarding privacy, open meetings, or public records, provided that any such amendment is not inconsistent with the purpose or intent of the voter-approved ordinance.”

The Board of Supervisors and City Attorney could twist the meanings of “not inconsistent with” and “purpose or intent” to pass amendments to gut the Sunshine Ordinance.

This provision would allow the Board of Supervisors to tamper with our voter-approved Sunshine Ordinance. Who will be the arbitrator of what is, or is not, “inconsistent”? Opponents of Prop. “B” (including me) worry that Mayor Breed or City Attorney Dennis Herrera — who are both anti-Sunshine — would find a way to weaken the Sunshine Ordinance.

The Board of Supervisors can currently add provisions to strengthen the Sunshine Ordinance, and has done so twice. But the Board cannot currently amend existing provisions in the Ordinance without voter approval.

Voter-approved ordinances shouldn’t be subject to Board of Supervisors twisting. If they want amendments to the Sunshine Ordinance, the Mayor and Board of Supervisors should place Sunshine amendments on a ballot and let voters decide!

Why on earth was this poison pill plopped into the middle of Charter change ballot measure to enact privacy protections? The two issues aren’t even remotely related.

Opponents of this ballot measure include: The Society of Professional Journalists, Northern California

Chapter; California’s First Amendment Coalition (FAC); San Francisco’s League Women Voters; SPUR; San Franciscans for Sunshine; the San Francisco Labor Council; the Communications Workers of America; the Pacific Media Workers Guild; and others.

Citizens and taxpayers doing business with the City, along with City employees themselves, deserve data privacy protection legislation. That doesn’t mean the Board of Supervisors should be allowed to tamper with voter- approved ballot measures via a poison pill.

Keep the fox out of the henhouse. Don’t hand the Board of Supervisors this power. Vote “No” on “B.”

Patrick Monette-Shaw has been a columnist for San Francisco’s Westside Observer newspaper for over a decade and is a member of California’s First Amendment Coalition.

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