The San Francisco Sunshine Task Force has asked for a formal investigation of outgoing Mayor London Breed’s practice of deleting text messages that by law are public record.
In a Jan 6 letter, the task force asked the Ethics Commission to pursue evidence that Breed showed “willful failure to discharge her duties” under the city’s Sunshine Ordinance.
Breed will be long out of office by the time Ethics takes any action, although in theory Breed could be barred from holding local public office in the future (which is highly unlikely anyway).
But the issue is critical: Breed is not the only public official who has seen text message deletion, and auto-delete functions in other communications systems like Slack, as a way to avoid producing records that might prove embarrassing or political damaging. And it could set a standard for the incoming administration of Daniel Lurie.
The action comes as the result of a complaint from sunshine activist Hazel Williams, who asked for the most recent message Breed had sent by text, Signal, and WhatsApp. The response: No such records exist.
As Mission Local noted: ” In other words, the mayor had no text messages whatsoever dealing with official city business.”
But that wasn’t true: Williams also asked for text messages from several department heads, and received one from the head of the Department of Public Works showing a message from the mayor about street cleaning during the very period of time that Breed denied such records existed.
The task force letter cites the city’s landmark sunshine law:
San Francisco Administrative Code section 67.29-7, subsec. (a): The Mayor and all Department Heads shall maintain and preserve in a professional and businesslike manner all documents and correspondence, including but not limited to letters, e-mails, drafts, memorandum, invoices, reports and proposals and shall disclose all such records in accordance with this ordinance.
The state Public Records Act, written before SMS text messages existed, is also very clear:
California Government Code section 7920.545 (Public Records Act): “As used in this division, “writing” means any handwriting, typewriting, printing, photostating, photographing, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.”
Text messages are, of course, a form of writing. So text messages used to conduct public business are, by law, public record. And deleting them is a violation of the Sunshine Ordinance, experts say.
The Ethics Commission could, and likely will, just drop the case for lack of jurisdiction since Breed will no longer be mayor Jan. 8.
But the issue won’t go away, and I think it’s safe to say that someone in the journalistic or activist world will repeat that request to Lurie in a few weeks. If he gives the same response, the process will start over.
If Ethics won’t take action, the new Board of Supes could pass legislation specifically stating that under the city’s Sunshine Law, text messages, Slack channels and any other type of new communications technology used by public officials is by law public record.
If this wound up on the ballot, it would pass with about 80 percent of the vote, as open-government laws typically do.
Lurie could right away set a new tone for his administration by saying he will comply with the letter and the spirit of the sunshine laws, and won’t delete his messages. He could direct everyone else in his administration, many of whom come from the private sector where there are no sunshine laws, to do the same. As soon as his new press office is up and running, I will ask. I hope other reporters do, too.
It’s also a great issue for the new public advocate.
Meanwhile, as of Jan 8 at noon, London Breed’s personal phone will no longer be subject to public records requests. So whatever she had to hide, it appears she got away with it.
