Proposition E - Public Records Requests

What it does

Prop. E is a Charter amendment that would permit the Board of Supervisors, by resolution, to designate any State or Federal law or regulation a "watch law." Watch laws are laws that would authorize or require the City (including its departments and employees) to disclose information or records "which could violate the rights of any individuals under the State or Federal Constitutions." The Charter amendment would authorize the Board to provide, by ordinance, that the Board, rather than any other agent of the City, would respond to all requests for information pursuant to a "watch law."

Why it is on the ballot

Although it does not explicitly say so, the Charter amendment is a response to concerns regarding requests for information under the Federal "Patriot Act." Under the Patriot Act, individual City officers and employees may be required to provide certain information to Federal authorities, and may be prohibited from disclosing to the Board or others that they have been asked to do so. This could place individual City employees and agencies in the position of establishing City policy regarding such requests, even when the requests could be of questionable validity under the Federal Constitution. It could also place individual employees in legal jeopardy if they refuse to comply with the requests, or seek guidance regarding the requests from other City agencies.

According to the City Attorney's Office, the proponents' concerns are based on section 215 of the Patriot Act. That section amends section 501 of the Foreign Intelligence Act of 1978 (50 USC 1861) authorizing a Federal magistrate designated by the Chief Justice of the United States to issue orders for the release of records. The section further provides: "No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section."

An example many people bring up is this: the Federal Government asks the City librarian to provide information on books people have checked out, as part of its anti-terrorism campaign. This is, to many San Franciscans, a violation of our civil rights and an improper use of Federal police power. How should the librarian respond? If she complies, she is participating in an unethical intrusion of governmental power into the private domain of individuals' reading choices. If she refuses to comply, or if she complies but does so in a public way, she risks being charged with a crime herself. According to its sponsors, Prop. E is intended to protect the librarian, give responsibility for deciding how to act to our elected officials, and, perhaps, make a statement that San Francisco is not going to cooperate quietly with the Patriot Act or other expansions of the government's ability to conduct covert operations within U.S. borders.

The concept is that decisions about how to comply with requests for information under these so-called "watch laws" will be moved up from the staff level to a higher, public level. Assuming that the Patriot Act were to be designated a "watch law," all requests for information under the Act would be referred to the Board of Supervisors. Although the Board could refer consideration of the request to a committee for recommendation, only the full Board, by resolution, could determine how the City would respond to a request for information. The Board would be authorized to meet in closed session to discuss information the disclosure of which is prohibited by State or Federal law.

Pros

Those who support this measure state:

• The Patriot Act represents a serious intrusion of governmental power into the private lives of U.S. citizens. Just as cities and states sometimes take the lead enforcing laws against polluters or worker-safety violations, against the policies of the Federal Government cities and states must now take the lead in standing up against the abuses of the domestic anti-terrorism campaign.
• Plainly, City policy regarding requests for confidential information should be established at a city-wide level. To the extent that the Federal Government could prohibit City employees or agencies even from disclosing that information has been requested, Federal law places individuals in a very difficult, and potentially vulnerable position, and requires them to act secretly on matters that should be subject to public debate. Placing the authority to release information with the Board of Supervisors may protect individual City employees, and ensures that there is proper debate by a group of elected officials regarding the constitutionally suspect sweep of the Patriot Act.
• Because Federal and State laws will change over time, it was necessary to write the measure broadly to enable the Board to designate laws other than the Patriot Act "watch laws."
• Although the City Attorney has the ability to advise City employees on how to respond to requests for information, the City Attorney has a duty to uphold the law. Therefore, if the point is to enable civil disobedience against Federal law, a more public body, such as the Board of Supervisors, must be given the authority to deal with these issues.

Cons

Those who oppose this measure state:

• The measure would transfer very significant, and potentially broad administrative powers to the Board of Supervisors. In general, the City Charter empowers the Board of Supervisors to set broad City policy, but precludes it from interfering in day-to-day decision-making by City departments. This measure would change that basic allocation of Charter authority by giving the Board the power to decide the precise information subject to disclosure. In this respect, the measure is potentially a "wolf in sheep's clothing."
• Although the sponsors of the measure state that it is intended to address the Patriot Act, nothing in the measure limits the Board's authority in that regard. In fact, the measure permits the Board to designate any State or Federal law that permits or requires the disclosure of information a "watch law," simply upon the Board's determination that compliance with the law "could violate the rights of any individuals under the State or Federal Constitutions." This definition could apply to immigration laws, Department of Transportation regulations, criminal laws, child support laws, or even the State's public records act. The sweep of the measure suggests the question whether the "cure" in this case--transferring broad new administrative powers from the executive branch of government to the Board of Supervisors--may create as many problems as it attempts to resolve.
• If the purpose of the measure is to protect civil liberties, it makes no sense to say that San Francisco will only refuse to comply with Federal laws that violate rights under the Constitution. First of all, it's strange to have the Board of Supervisors rule on constitutionality. Second, it's strange to set this up in such a way that if the U.S. Supreme Court upholds provisions of the Patriot Act, the City will comply with the laws rather than defining our own version of civil rights, if that is the true purpose of this law. If this is supposed to be a protest statement, the language about constitutionality muddies the clarity of the statement.
• The provision of the Patriot Act that concerns the proponents of this measure does not authorize the FBI to obtain information in the absence of a court order, and, in this respect, differs little from existing laws pertaining to grand jury subpoenas, wiretaps, and similar investigative procedures.
• The City Attorney presently advises departments on disclosure requests, and the Mayor presently has authority to direct department heads. The Patriot Act does not prevent a City employee from consulting with the City Attorney regarding the legality of an information request. A wholesale transfer of authority is unnecessary to achieve the goal of redressing abuses of Federal authority.

The SPUR Board was unable to obtain the 60% majority needed to either oppose or endorse the measure.

In general, SPUR recognizes the seriousness of the issues Prop. E is trying to solve. Our concerns are with the specific way the measure is drafted. We have a hard time seeing the Board of Supervisors as the proper body to rule on the constitutionality of Federal and State laws. The City Attorney might be more appropriate to rule on such questions, and the Mayor might be more appropriate for making decisions about how department heads should act.

While SPUR has supported previous measures that are in violation of Federal law--most recently the moves to legalize medical marijuana--and we recognize that these sorts of "jurisdictional conflicts" are a valid part of the American democratic process, we are divided about whether the legitimate problem addressed by this measure justifies the scope and nature of the "cure" proposed.

SPUR has "No position" on Proposition E.