(Courtesy photo)

Proposition B would strengthen – not weaken – the City’s public records laws

Proposition B on this Fall’s ballot would establish a privacy policy for the City and County of San Francisco and a commitment to protecting your personal information for years and decades to come. Without reasonable regulation, your personal information will continue to be used against you to meddle in elections, allow law enforcement to target and harass peaceful protesters, place immigrant and marginalized communities in jeopardy, and profit off of your sensitive financial and demographic information. The proposal is unobjectionable: it’s time to put your Privacy First.

But recently, some seem to have gotten the wrong idea about a small piece of the proposal. Someone let an elephant in the room, and it’s time for us to talk about it.

You see, while drafting Proposition B, stakeholders were confronted with a simple conundrum: the implicit tension between data privacy regulation and public records laws, and the danger that implementation of our privacy policy could in fact hinder the City’s robust public records laws, including the Sunshine Ordinance.

As a former years-long member of the Sunshine Ordinance Task Force, I took the concern seriously. Serving on the Sunshine Ordinance Task Force in the wake of revelations by Edward Snowden of mass data surveillance was a privilege, and I didn’t take the task lightly. I worked closely with many members of the advocacy group San Franciscans for Sunshine – including architects of the Sunshine Ordinance – and they remain among my earliest friends and mentors in the San Francisco political world.

In response to this concern, drafters of Proposition B inserted a necessary but non-controversial provision which reads as follows: “The Privacy First Policy may not be implemented in a manner that is inconsistent with voter-approved ordinances regarding public records.”

In short, our Privacy First policy would be second to one thing and one thing only: the Sunshine Ordinance. It was critical for us to make sure that privacy regulation did not weaken San Francisco’s reputation as a beacon for open government and transparency.

In conversation with Sunshine Ordinance advocates over the past several years, there was widespread agreement about another fact: our public records laws are fundamentally, objectively broken.

You see, the Sunshine Ordinance was originally approved by San Francisco voters in 1999. It created some of the strongest public records laws of its time, including a Task Force to oversee implementation and enforcement (on which I was grateful to serve.) But that Task Force has fallen into disrepair. Right now, there is a permanent vacancy on the Task Force because the appointing authority — New America Media — no longer exists. Advocates also agree that the Sunshine Ordinance has grown stale when it comes to compelling disclosure of records created by new technology formats. Its enforcement provisions have proven cumbersome and ineffective at holding elected officials accountable for potential violations.

Public records advocates have long asked for elected officials to fix these and other problems with the Sunshine Ordinance – and right now, the only way to do that is at the ballot.

It’s past time to bring the Sunshine Ordinance into the 21st Century, and the authors of Proposition B want to do right by Sunshine and public records advocates. That’s why we drafted a very limited provision that would allow the Board of Supervisors to amend the Sunshine Ordinance, “provided that any such amendment is not inconsistent with the purpose or intent of” the Sunshine Ordinance.

Opponents think that that provision will be abused. With all due respect to my good friends and mentors, I disagree that it can be. And the reason legal experts agree with me is simple: there is no amendment that would both (1) be consistent with the purpose and intent of the Sunshine Ordinance (as the law would require), and (2) undermine, weaken, or “gut” the Sunshine Ordinance, as some opponents have taken to arguing. It’s a paradox rooted in skepticism and a baseless interpretation of the law.

Skepticism can be healthy, but it shouldn’t obscure the truth: there is no poison pill in Proposition B. It’s something else entirely. Keeping with the metaphor, it’s more like a vitamin; one which will allow advocates and lawmakers to strengthen our public records laws, and with clear safeguards to prevent abuse.

Transparency and open government need not be inconsistent with protecting your privacy. Don’t be persuaded by a misguided legal interpretation of safeguards that were carefully drafted with your best interests in mind.

This November, Vote Yes on Proposition B to put your Privacy First… well, to everything but the Sunshine Ordinance.

Lee Hepner helped draft Proposition B, which is on the November ballot in San Francisco. He is an attorney and served for two years on the Sunshine Ordinance Task Force.

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