Immediate Disclosure Request - City Atty/COFAM/FAMF Relationship

To Whom It May Concern:

** Please redact your responses correctly! This is a public mailbox, and all of your responses (including emails, attachments, file shares, and the disclosed records) may be automatically and instantly available to the general public on the MuckRock.com service used to issue this request (though I am not a MuckRock representative). Once you send them to us, there's no going back. **

I would like to get to the bottom of the intriguing relationship between the City, COFAM and FAMF.

Pursuant to the Sunshine Ordinance and CPRA, I hereby request the following records as 17 distinct Immediate Discloure Request(s) from the City Attorney's Office. Note that you may argue some of them not immediately answerable but must still immediately answer the remainder.
1. all past/present legal/contractual relationships between the City or any city agency and Corporation of the Fine Arts Museums of San Francisco (COFAM), including any drafts that your office reviewed as to form and were not executed
2. all past/present legal/contractual relationships between the City or any city agency and Fine Arts Museums Foundation (FAMF), including any drafts that your office reviewed as to form and were not executed
3. all records of how city employees use IT systems owned or operated by FAMF and/or COFAM
4. all records of how city employees retain records owned, used, or prepared by the city agency, but stored on IT systems owned or operated by FAMF and/or COFAM
5. all correspondence (including all attachments, exhibits, memos, metadata, headers, emails, physical mail/notes, text, SMS, MMS, or any chat app messages, and in their original electronic format or scan of physical documents) between FAMSF* (the asterisk here and below means this request includes each and every employee, board member, or officer in addition to the entity as a whole, and also requires a City of San Jose v Superior Court (2017) search of private property for records re: the public's business) and Robert M. Smith between Jan. 1, 2018 and Sept. 12 2019 (inclusive)
6. all correspondence (including all attachments, exhibits, memos, metadata, headers, emails, physical mail/notes, text, SMS, MMS, or any chat app messages, and in their original electronic format or scan of physical documents) between COFAM* and Mr. Smith between Jan. 1, 2018 and Sept. 12 2019 (inclusive)
7. all correspondence (including all attachments, exhibits, memos, metadata, headers, emails, physical mail/notes, text, SMS, MMS, or any chat app messages, and in their original electronic format or scan of physical documents) between FAMF* and Mr. Smith between Jan. 1, 2018 and Sept. 12 2019 (inclusive)
8. all correspondence (including all attachments, exhibits, memos, metadata, headers, emails, physical mail/notes, text, SMS, MMS, or any chat app messages, and in their original electronic format or scan of physical documents) between FAMSF* and COFAM* re: {Mr. Smith or his requests/complaints, or the Sunshine Ordinance, or CPRA} between Jan. 1, 2018 and Sept. 12 2019 (inclusive). Use the following case insensitive query: "smith" OR "cpra" OR "sunshine"
9. all correspondence between FAMSF* and FAMF* re: {Mr. Smith or his requests/complaints, or the Sunshine Ordinance, or CPRA} Jan. 1, 2018 and Sept. 12 2019 (inclusive). Use the following case insensitive query: "smith" OR "cpra" OR "sunshine"
10. all correspondence (including all attachments, exhibits, memos, metadata, headers, emails, physical mail/notes, text, SMS, MMS, or any chat app messages, and in their original electronic format or scan of physical documents) between FAMSF* and the City Attorney's office* or Sup. of Records' office*, between Jan. 1, 2018 and Sept. 12 2019 (inclusive). I anticipate you may use Attorney-Client privilege as a shield here. However: the City has waived the privilege if you already provided any of these communications to anyone else, whether that anyone is Mr. Smith or private entities COFAM or FAMF. If you waived the privilege by providing the record to member of the public Mr. Smith, that record is now permanently a public record and you must also give it to me (Gov Code 6254.5). If FAMF or COFAM or their employees have the purportedly privileged communication (for example by including them in an email thead or cc-ing or bcc-ing or forwarding the message to them), you also have waived the privilege and must provide me the documents. If the City's argument for privilege is that the City Attorney is also representing FAMF or COFAM, then also produce records of such a contract (the MOU says no such thing) and every associated invoice (which is not protected by privilege). If no such contract exists, and the representation is provided for free by the City to these private entities, a variety of other statutes regarding use of public funds for a private purpose may be in play.
11. all correspondence (including all attachments, exhibits, memos, metadata, headers, emails, physical mail/notes, text, SMS, MMS, or any chat app messages, and in their original electronic format or scan of physical documents) between COFAM* and the City Attorney's office* or Sup. of Records' office*, between Jan. 1, 2018 and Sept. 12 2019 (inclusive).
12. all correspondence (including all attachments, exhibits, memos, metadata, headers, emails, physical mail/notes, text, SMS, MMS, or any chat app messages, and in their original electronic format or scan of physical documents) between FAMF* and the City Attorney's office* or Sup. of Records' office*, between Jan. 1, 2018 and Sept. 12 2019 (inclusive).
13. every invoice, contract, MOU or agreement between the City Attorney's office and FAMF, including any that your office reviewed as to form and were not executed
14. every invoice, contract, MOU or agreement between the City Attorney's office and COFAM, including any that your office reviewed as to form and were not executed
15. every agency policy or memorandum discussing the relationship between the City, FAMF, and COFAM
16. every agency policy or memorandum discussing the applicability to FAMF of the Sunshine Ordinance
17. every agency policy or memorandum discussing the applicability to COFAM of the Sunshine Ordinance

I would like to remind you that you need to indicate for each request above, whether you did or did not have responsive records (separate from whether or not you withheld them). The Sunshine Ordinance requires you to indicate to me the existence or non-existence of records, regardless of whether they are exempt from disclosure.

Remember any record retained, owned, used, or prepared by your office must be included. If a city employee possesses a COFAM or FAMF document, you must disclose it. If COFAM or FAMF are holding records prepared or used by your office, you must disclose it. You also must justify each and every withholding or redaction with particularity. Use footnotes or inline markings for example.

We remind you of your obligations to provide electronic records in any format we request them in, as long that format is available to you OR easy to generate (Admin Code 67.21(l)). Therefore, emails exported in the .eml or .msg format with all non-exempt headers, metadata, attachments, etc. are best. All other documents may be provided as text .PDFs.

If you choose to convert documents, for example, to PDF or printed format (even though we have specifically requested .eml or .msg formats), to easily redact them, you must still ensure that you have preserved the full content of the original conversation record, which contains many detailed headers beyond the generally used From/To/Subject/Sent/etc.

If you send PDFs, please use only text/search PDFs, not image/scanned PDFs. You must make exact copies of records under the CPRA - do not exclude color, formatting, images, or any other content that may be lost by printing and scanning records incorrectly.

If you redact portions of the records, please specifically justify each such redaction with a legal citation (statute, ordinance, or case law). If you withhold metadata/headers, even if you don't visually redact them, you are still withholding and must justify it. If you provide PDFs or printed conversations or give us only a few of the headers or exclude attachments/images, and therefore withhold the other headers/attachments without proper justification, you may be in violation of SF Admin Code 67.21, 67.26, 67.27, Govt Code 6253(a), 6253.9, and/or 6255, and we may challenge your decision in court, before the Supervisor of Records, and/or the Sunshine Ordinance Task Force.

In all cases, please provide only those copies of records available without any fees. If you determine certain records would require fees, please instead provide the required (free) notice of which of those records are available and non-exempt for inspection in-person if we so choose.

Thanks,
Anonymous

Thank you for your response. I believe at least requests 15, 16, and 17 for agency memos and policies should be "readily answerable" even if you consider the others not to be. You may provide those 3 requests without metadata and in any industry standard format if that would make them "readily answerable." Regardless, please provide all responses on a rolling basis as soon as they are available.

As an aside, I don't believe past requests, if any, can have a bearing on future requests under the Sunshine Ordinance, although it does not seem you are actually asserting any such reason for delay. Please remember that any number of independent users may send requests from muckrock.com email addresses, no different than gmail.com or msn.com addresses, and that outside of specific provisions of the CPRA re: pesticides, crime victims, and other items that I don't need, there is no requirement to reveal requestor identity to a public agency, nor therefore may you discriminate on that basis, nor on what my identity may be, nor on the purpose of my request (GC 6257.5), nor do I have to indicate to the public agency whether I have or have not sent any other records requests. Requestors may have many reasons to maintain complete anonymity both within and across requests, including to avoid retaliation by the government for the enforcement of transparency laws, and such anonymity is protected under the First Amendment. One of the City's records request form states, for example: "ANONYMOUS REQUESTS You are not required to include any contact information with a request, ..." In general, whether or not a record is public does not depend on the person making the request, and once any exemptions are waived for one, they must be waived for all (GC 6254.5).

Sincerely,

Anonymous

Thank you. Please also include: all notices sent or received by the City, under the 2002 lease agreement, from or to FAMF or COFAM. The City Attorney is listed as a notice address in the lease, so you should have these if they exist. I'm looking for things like terminations, expirations, and defaults (but also all other notices sent to city).

Thank you - is your response ongoing?

I will note that as far as I know FAMSF did not provide "Agreement Governing Reimbursement 2002-2003" when we made the request to them - that is not a complaint against your office, but will be part of our complaints against FAMSF, after I verify as such.

** Please redact your responses correctly! This is a public mailbox, and all of your responses (including emails, attachments, file shares, and the disclosed records) may be automatically and instantly available to the general public on the MuckRock.com service used to issue this request (though I am not a MuckRock representative). Once you send them to us, there's no going back. **

This is a further request for every single email/message or physically written communication prepared, owned, used, or retained by your agency mentioning any of these persons, or to/from any of these persons, from Jan. 2016 to present, on the business AND personal: email, text, MMS, WhatsApp, Signal, Telegram, Instagram, Facebook, WeChat, Twitter, and all other online chat accounts of the City Attorney Herrera, and of Buck Delventhal, Brad Russi, and Lauren Curry. You must perform a City of San Jose v Superior Court search for each of the 4 people mentioned above as well.
1. Dede Wilson (use all her nicknames and spellings)
2. Bernard Osher ,
3. Jack McDonald ,
4. Louise Renne ,
5. Joe Cotchett ,
6. Bill Huggins ,
7. Therese Chen ,

This is also a 67.21(c) request for quantity, nature, form statements for each of these 7 requests for each of 4 custodians (28 statements), in 7 days without extension.

Please follow the Ordinance precisely as I am auditing your agency's public records regimen; as you are well aware, every violation of the Sunshine Ordinance will be appealed.

We remind you of your obligations to provide electronic records in any format we request them in, as long that format is available to you OR easy to generate (Admin Code 67.21(l)). Therefore, emails exported in the .eml or .msg format with all non-exempt headers, metadata, attachments, etc. are best.

If you choose to convert documents, for example, to PDF or printed format (even though we have specifically requested .eml or .msg formats), to easily redact them, you must still ensure that you have preserved the full content of the original conversation record, which contains many detailed headers beyond the generally used From/To/Subject/Sent/etc.

If you send PDFs, use only text/searchable PDFs, not images. Do not physically print and scan records (see SOTF 19047).

If you withhold portions of the metadata/headers or any other part (images, attachments, urls, etc.), please specifically justify each such redaction with a legal citation (statute, ordinance, or case law). Follow 67.26 - every single withholding must be justified specifically.

If you provide PDFs or printed conversations or give us only a few of the headers or exclude attachments/images, and therefore withhold the other headers/attachments without proper justification, you may be in violation of SF Admin Code 67.21, 67.26, 67.27, Govt Code 6253(a), 6253.9, and/or 6255, and we may challenge your decision in court, before the Supervisor of Records, and/or the Sunshine Ordinance Task Force.

Please provide only those copies of records available without any fees. If you determine certain records would require fees, please instead provide the required (free) notice of which of those records are available and non-exempt for inspection in-person if we so choose.

Remember you must inform us whether there are are no responsive records, some fully disclosed records, some fully withheld records, or some partially disclosed/partially withheld/redacted records for each of the individual requests.

Sincerely,

Anonymous

** Please redact your responses correctly! This is a public mailbox, and all of your responses (including emails, attachments, file shares, and the disclosed records) may be automatically and instantly available to the general public on the MuckRock.com service used to issue this request (though I am not a MuckRock representative). Once you send them to us, there's no going back. **

First, "Dede Wilson" should be "Dede Wilsey" in the prior request.

Second, this is a yet further immediate disclosure request for a response to the following questions re: public information re: your office's procedures, operations, policies:

1. Does the City Attorney, his Office, or any of his employees currently represent COFAM (or its board or employees)?
2. Does the City Attorney, his Office, or any of his employees currently represent FAMF (or its board or employees)?
3. Has the City Attorney, his Office, or any of his employees formerly represented COFAM (or its board or employees)?
4. Has the City Attorney, his Office, or any of his employees formerly represented FAMF (or its board or employees)?

Ms. Coolbrith,

Thank you.

Note there was a followup to that request as well, copied below:
"""
First, "Dede Wilson" should be "Dede Wilsey" in the prior request.

Second, this is a yet further immediate disclosure request for a response to the following questions re: public information re: your office's procedures, operations, policies:

1. Does the City Attorney, his Office, or any of his employees currently represent COFAM (or its board or employees)?
2. Does the City Attorney, his Office, or any of his employees currently represent FAMF (or its board or employees)?
3. Has the City Attorney, his Office, or any of his employees formerly represented COFAM (or its board or employees)?
4. Has the City Attorney, his Office, or any of his employees formerly represented FAMF (or its board or employees)?
"""

Those last 4 questions are in fact readily answerable. Surely Mr. Herrera must know who his clients are.

Also note that there is no limitation on my ability under 67.25 to designate a request as an IDR. The onus is on the agency to refuse to use immediate disclosure deadlines if it sees fit, and then up to me to dispute that if I feel appropriate.

Thanks,
Anonymous

** Please redact your responses correctly! This is a public mailbox, and all of your responses (including emails, attachments, file shares, and the disclosed records) may be automatically and instantly available to the general public on the MuckRock.com service used to issue this request (though I am not a MuckRock representative). Once you send them to us, there's no going back. **

The Sunshine Ordinance requires that either Mr. Herrera or his delegate release oral public information (67.22).
For your convenience, I provided the questions in email.

However, if you refuse to answer them, please provide the official government phone number of Mr. Herrera or said delegate that I may call instead. (Do not provide personal phone numbers as all of your responses may be made public).

When I have time, I intend to call 4 times, once for each of my 4 questions, each of which your office must answer if it can do so within 15 minutes.
Your office's answers will be 'on-the-record' and may be included in my report.

Sincerely,

Anonymous

** Please redact your responses correctly! This is a public mailbox, and all of your responses (including emails, attachments, file shares, and the disclosed records) may be automatically and instantly available to the general public on the MuckRock.com service used to issue this request (though I am not a MuckRock representative). Once you send them to us, there's no going back. **

Since you have ignored my informal request, we shall do this formally.

This is an Immediate Disclosure Request for:
- the name and official government phone number of either Mr. Herrera or his delegate who must answer oral questions under SFAC 67.22 . (Do not provide personal or private phone numbers as all of your responses may be made public).

When I have time, I intend to call 4 times, once for each of my 4 questions, each of which your office must answer if it can do so with 15 minutes of research.
Your office's answers will be 'on-the-record' and may be included in my report.

It would seem that voluntarily answering in writing is a better use of the City's time, but I am happy to go down this route if that is what you wish.

Sincerely,

Anonymous

Thank you - there are no outstanding requests on this thread.

--Anonymous

** Please redact your responses correctly! This is a public mailbox, and all of your responses (including emails, attachments, file shares, and the disclosed records) may be automatically and instantly available to the general public on the MuckRock.com service used to issue this request (though I am not a MuckRock representative). Once you send them to us, there's no going back. **

1) Yes, please do send the 12 non-privileged ones. If you send those 12 documents in PDF format *without printing and scanning,* (i.e. directly going from Outlook to PDF, and then redacted in Adobe Acrobat in searchable form), I will also waive the .msg/.eml format request and request for headers *except* the usual From, To, CC, BCC, Subject, Date, and Sender (and attachments and inline images). I am also waiving in this request Gov Code 6254.3(b)(1) re: disclosure of personal employee email addresses "used by the employee to conduct public business, or necessary to identify a person in an otherwise disclosable communication." I am not waiving disclosure of govt email addresses however - that is clearly public.

2) I believe there is already a dispute between myself and the City regarding 67.21(c)'s quantity provision re: attorney-client privilege on another request so there is no need to duplicate complaints. If the Task Force eventually rules that 67.21(c)'s quantity provision prevails on A-C privileged emails as well, then I will just re-request that statement.

3) I do believe the work-product (W-P) privilege is different however, as it is the attorneys, not the City as client, that holds the privilege. Unlike A-C privilege which is a mandatory exemption since you can't waive it, W-P privilege would be a permissive exemption under the CPRA, and thus the Sunshine Ordinance can overrule it. Therefore, I believe your office should indeed provide the quantity of W-P emails (which have no additional A-C privilege) under 67.21(c).

Thanks,
Anonymous

Thanks! Does this complete all request responses?