From: Anonymous

To: Supervisor of Records (City Attorney SF) , City Attorneys Office (City Attorney
SF) , Dennis Herrera (City Attorney SF) , SOTF (SF)
Date: Tue, 16 Feb 2021 19:15:06 +0000
Subject: Herrera covers up Walter Wong/Harlan Kelly text messages, and as
Supervisor of Records, Herrera has Failed His Essential Purpose for Years
AttachmentList: 1

Reminder: SF City Attorney Dennis Herrera refuses for over half a year to respond in
any way to a July 2020 petition pursuant to Admin Code 67.21(d) to order disclosed 45
pages of text messages between Harlan Kelly, Jr. and Walter Wong. These are public
records already disclosed by SFPUC to me and published online (that I have examined -
regarding travel, insurance, and payments) and that were then retracted by PUC while
Kelly was still employed by SF and replaced by a mostly redacted version, at which
point I filed the appropriate petition for disclosure. (To the news media on BCC: I am
happy to provide additional documentation - feel free to reach out or consider making
the records request yourself to Herrera for my petition and their non-existent responses.
Herrera helping the City unlawfully hide public records is what sustains government
opacity and keeps the public in the dark on corruption. The Supes have known about this
for some time, but have done nothing...).

But Herrera, in his Sunshine Ordinance-designated role as Supervisor of Records, has

abdicated his legal duties not just in this case, but for many years. Attached is an
analysis of 4 years of supervisor of records annual reports from 2015 to 2018 (none of
my own petitions are included in the data, as my advocacy began in 2019). For
years, Herrera, acting supposedly as a neutral adjudicator, has manipulated and
lessened the personal usefulness, public newsworthiness, or political impact of
timely public records disclosure by his refusal to issue determinations in response
to petitions, in order to benefit City politicians, at the expense of the public he
supposedly serves. Access delayed is access denied. Herrera's supposed point of
pride of being above City politics and Coté-parroted "independence" is a façade, and he
doesn't order disclosed anything the rest of the City doesn't voluntarily disclose.

Herrera is required by law to issue a determination whether records requested (or any
parts thereof) are public within 10 days of a petition, and if they are, to immediately
order the City to comply with the records request (SF Admin Code 67.21(d)). He is
required to do so whenever any member of the public believes the City has failed,
refused, or incompletely complied with a records request. Herrera's office is also
required by law to "protect and secure the rights of the people of San Francisco to access
public information" (SFAC 67.21(i)). Herrera does none of this.

In an effort to ensure no determination against the City is ever issued - Herrera* has
rewritten the law in his own mind:
 ignoring outright the 10-day deadline imposed on Herrera's determinations,
refusing to issue any determination at all in the vast majority of cases,
narrowing his jurisdiction to only requests where he feels the City intentionally
withheld records, even though no such limitation is stated in SFAC 67.21(d), and
refusing to issue immediate orders for disclosure as dictated in the Sunshine
Ordinance.

This is a natural consequence of Herrera treating the Sunshine Ordinance's substantial

enhancements of the state Public Records Act with general contempt.

Herrera claims on his website** that he acts in a "quasi-judicial" fashion in the role of
Supervisor of Records. To act as a third-party neutral, an attorney is required by the
California Rules of Professional Conduct to not also serve as lawyer to either party (for
obvious reasons of fairness). Herrera should obviously not favor his City coworkers
over the public who is petitioning him. In the end, it is the people of San Francisco who
are the ultimate client, not the temporary representative who holds a City office.

But in 4 years, Herrera has not once granted, even in part, any petition that any record or
part thereof was public or ordered the disclosure of anything. Out of 51 petitions***
from 2015 to 2018, Herrera denied 15 petitions (thus determining that the information
was not public) and refused to provide any determination at all in 35 cases. (The same
is true in 5 years if you include the 2019 annual report summary with my own petitions,
and will likely be true in 2020 as well, though no annual report has yet been published)

The law does not allow Herrera to refuse to issue a determination - when a petition is
filed, he must issue a response. Looking at the instances where Herrera refused to issue
a determination, in most cases, Herrera has decided that because the City - after the
petition was filed - eventually produced some records, the petition no longer matters. In
many cases, this production happens long after the request was made, the original
Sunshine deadlines (which run from the date of request, not date of petition) have
expired, and even the 10-day deadline on Herrera's response is long gone. The City
providing records only when they feel like doing so - in violation of the requirements of
the Ordinance and CPRA - is what Herrera abets by refusing to comply with the 10-day
deadline that binds him, because if he responded in 10-days he would have to also
immediately order records disclosure, as the law says. In fact, Herrera will not provide
any response until and unless the City first voluntarily provides the records - defeating
the entire purpose of a 67.21(d) petition. The timely access to public records is the
public's legally guaranteed right - not merely access at some indeterminate future time
of Herrera's and the City's choosing, and Herrera repeatedly aids his City clients in
violating the law.

Worse yet, after the records at issue in a petition are unlawfully, belatedly published,
Herrera still stubbornly refuses to now put in writing what the petitioner had argued
(correctly) all along and what the law requires of Herrera: a determination that some or
all information previously undisclosed was actually public; thus, no lessons are learned
and the City can pretend that it complied with the law. This serves also to protect
Herrera's other deputies whose original advice to the City department may have been to
unlawfully withhold or delay the information to begin with. Sometimes long after a
petition is filed, the City department will reopen a request, disclose more records, and
immediately after Herrera will issue a petition denial. This is a lie concocted by Herrera.
The information petitioned, or at least some part of it, was in fact public at the time of
the petition (as proven by the additional disclosure), and yet the determination Herrera
issues is now a denial because, as Herrera argues in such replies, he considers only the
later, unlawfully-untimely, disclosures.

Furthermore, Herrera falsely claims that his jurisdiction extends solely to records
withheld (i.e. by choice) by the City. Nowhere is that narrow jurisdiction stated in the
law. The public can petition Herrera whenever the City "refuses, fails to comply, or
incompletely complies with a request." The following common scenarios are in fact
within Herrera's jurisdiction, but he attempts to ignore them:

department refusal to respond within the legal deadlines or at all (i.e. "refuses" or
"fails")
not providing justifications for withholding records or redactions as required by
law (i.e. "incompletely complies")
not searching for records such as on personal accounts as required by City of San
Jose v Superior Court (2017) (i.e. "incompletely complies"). Note the distinction
Herrera makes: he refuses to adjudicate the proper search for records as opposed
to a decision on what to withhold after searching. But not searching for the
records in the first place is an incomplete compliance with a records request -
essentially the worst form of non-compliance.
providing records but not in the form requested and required by law (i.e.
"incompletely complies")

Finally, even outright petition denials (where the City never releases anything) are often
given long after the 10-day deadline. What excuse does Herrera have there? Unlike
SOTF, Herrera is not bound by public hearing requirements and moreover has a highly
paid attorney staff attending to these petitions as part of their job, instead of public
volunteers. That's why the Sunshine Ordinance creates two parallel opportunities for
adjudication - including the supposedly faster one through Herrera that apparently the
public can never win.

The end result of Herrera's malfeasance is this: the public does not get timely
access to lawfully-public records; and the City learns no lessons from the small
percent of requesters persistent and savvy enough to force disclosure in a way that
would benefit the public at large if Herrera actually did his job and issued timely
determinations. While I have never won a Supervisor of Records petition (and perhaps
no one ever has), during the same 1.5 years I have also filed various similar SOTF
complaints. In the many SOTF complaints that I have won (and one that I have lost) a
final determination is always published, providing the City and the public some
guidance for future similar requests. And unlike Herrera, SOTF has never ignored a
complaint been ignored merely because the City decided to cough up the records a year
after they were lawfully due.

The Ethics Commission used to act similarly to Herrera - refusing to hear Sunshine
Ordinance complaints as required by the law. The Commission was then sued, and the
Commission lost, forcing it to hear cases fairly. If Herrera continues, he too will be sued
to force him to actually perform his job.

As of this email, Herrera refuses to issue any determination (or even, as he often does, to
state in writing that he won't give one) in my petition of July 2020 regarding the text
messages between Walter Wong and Harlan Kelly, Jr which were previously disclosed to
me and then retracted. In doing so, Herrera is helping cover up Kelly's interactions with
Wong that are in fact disclosed in those records, and that at least I have in fact already
seen. Make no mistake: the 10-day deadline is simply ignored by Herrera, pandemic or
no pandemic, and Herrera, like many law-breaking City officials, now prefers to excuse
to some of you his current behavior on the pandemic, laying his lawlessness at the feet
of the innocent dead. How, exactly, has COVID prevented a legal analysis of Harlan
Kelly's 45-pages of texts for over half a year?

Footnotes:

* I don't distinguish between Herrera's office and Herrera here. Herrera, personally, is
the Supervisor of Records by law, but his deputies generally sign the petition responses
under his name. His deputies' actions impute to him.
** Archived
at: https://web.archive.org/web/20201128144524/https://www.sfcityattorney.org/good-
government/sunshine-appeals/
*** One of the 51 petitions were supposedly outside of Herrera's scope of review.

NOTE: 1. If you are a public official: I intend that these communications all be
disclosable public records, and I will not hold in confidence any of your messages,
notwithstanding any notices to the contrary. 2. Nothing herein is legal, IT, or
professional advice of any kind. The author disclaims all warranties, express or implied,
including but not limited to all warranties of merchantability or fitness. 3. In no event
shall the author be liable for any special, direct, indirect, consequential, or any other
damages whatsoever. 4. The digital signature (signature.asc attachment), if any, in this
email is not an indication of a binding agreement or offer; it merely authenticates the
sender.

Sincerely,

Anonymous
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