City Tried to Withhold Memo That Was Already Public

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City Tried to Withhold Memo That Was Already Public

The ordeal lays bare how subjective the public records process can be. At various points over the last couple months, different city officials decided that the memo couldn’t be released, that it didn’t exist and that releasing it is totally fine.

IN-BODY STORY
Illustration by Adriana Heldiz

This post has been updated.

After initially declining, the city of San Diego on Tuesday released a memo written years ago by Mayor Todd Gloria that has already been made public by another government entity.

While still on the City Council in 2015, Gloria called on then-Mayor Kevin Faulconer to develop a citywide use and privacy policies around surveillance. Gloria was reacting to news about San Diego’s use of facial recognition technology, license plate readers and more.

At the time, Gloria said he stood behind city employees who used technology for public safety reasons. But he warned about the negative impacts on civil liberties as well as the city’s liability, and asked for an inventory of any sensitive data collected by such devices. He began his memo by imploring Faulconer to make the city “a leader in transparency.”

The memo is hardly controversial. In fact, it mirrors what Gloria had been saying publicly in 2015 and what he’s been saying in his new role as mayor for months — that he’s in favor of a new ordinance putting greater restraints around the use of surveillance. He even set aside money in the fiscal year 2022 budget for a project manager who will oversee and coordinate the implementation of that ordinance if it’s ultimately approved by the City Council.

Although Gloria and Faulconer are no longer in their respective positions, the city originally deemed the memo too sensitive to release, arguing that a conversation going back six years would prevent officials from talking amongst themselves if made public. But the city has since decided to release the memo online after further review.

The ordeal lays bare how subjective the public records process can be. At various points over the last couple months, different officials working within the city’s larger structure decided that the memo couldn’t be released, that it didn’t exist and that releasing it is totally fine.

I first learned about the contents in the memo because the city sent it to the U.S. House of Representatives Committee on Oversight and Reform in 2017 as part of an inquiry into facial recognition technology ahead of a series of hearings. The committee publicly posted the memo on its website among a batch of documents in April.

In other words, the memo was already public thanks to Congress — which made the city’s initial reluctance odd. It’s also become a rallying cry for La Prensa, a newspaper in San Diego. In recent months, both Voice of San Diego and La Prensa have separately asked the city for a copy of the memo but received different — seemingly contradictory — responses.

I filed the original request in March. Six weeks later, I got a denial.

“Any documents responsive to the request are being withheld pursuant to: Disclosure of the information would chill the City’s ability to have open and frank discussions about pre-decisional, deliberative matters,” wrote the City Council’s administrative director.

I appealed the decision to Gloria last month, asking his staff whether he’d waive any privileges he believed he had over the memo. His office said it was waiting on an opinion from the city attorney. Hilary Nemchik, a spokesperson for the city attorney, confirmed that her office advised the city on the legal standards of the California Public Records Act in response to my request.

One day after the city’s denial was posted on its public records portal, La Prensa filed an almost word-for-word request for the same document and also got a denial, but for a different reason. A public records manager wrote that the city had “no responsive documents.” The California Public Records Act requires that agencies state whether a record exists and then give a reason for why it’s being withheld, citing one of the exemptions laid out in the law.

The city did in my case. The city didn’t in La Prensa’s case.

The city told me it was withholding records. The city told La Prensa it had no records.

It’s possible that these responses aren’t actually at odds with each other — that what the city meant when it said, “no responsive documents,” was more like, “the documents are being withheld, so we’ve got nothing disclosable.” But those words do not mean the same thing. As Kelly Aviles, a public records attorney, told me, “No responsive records is different from no disclosable records.”

Because separate officials responded to my request and to La Prensa’s request, they may have interpreted the rules around disclosure in their own ways, the ending result a matter of human error.

But it does at least raise the question of whether the city as a whole treats public records requests equitably. La Prensa is convinced that it doesn’t. Faulconer’s administration was particularly critical of the newspaper, suggesting that it had a political agenda, especially around its coverage of 101 Ash St. — a city deal to lease and eventually own a downtown building has been the source of controversy and litigation since it was evacuated in early 2020.

In a statement, La Prensa’s attorney, Cory Briggs, argued that the Latino-owned La Prensa, which caters to a Spanish-speaking audience, is treated differently than its counterparts, unable to get comment from the mayor’s and city attorney’s offices on its stories. He cited race as the reason.

“Leave it to San Diego’s top elected officials to make Congress look good when it comes to inclusivity and transparency,” Briggs said.

Last week, he filed a pair of lawsuits against the city on the newspaper’s behalf — one for the 2015 Gloria memo and another for 911 calls that precipitated the police beating of a homeless man in La Jolla.

Nick Serrano, Gloria’s deputy chief of staff, said the mayor “is committed to transparency, and we expect all city employees to comply with the California Public Records Act to the letter of the law.”

Serrano also denied Briggs’ claim that La Prensa was treated differently.

“The accusation is absurd and anyone who has ever paid attention to what this mayor stands for knows it’s absurd. Mayor Gloria has always stood on the premise of creating a city that is more equitable and just,” he wrote. “Our office has a record of working closely and enthusiastically with Spanish-language outlets that maintain the journalistic integrity La Prensa sorely lacks.”

I also sent the requests to David Snyder, executive director of the First Amendment Coalition, a nonprofit based in San Rafael, and he agreed that officials are opening themselves up to the question of whether they treat different records requesters differently, “which they are not permitted to do under the [California] Public Records Act. And if they are not treating different requesters differently, it suggests they are not looking at their own files before responding to requests — also not permitted.”

It’s not clear whether Faulconer ever responded to the 2015 memo, which included a number of questions. Gloria, for instance, wanted to know whether the various forms of technology deployed by the San Diego Police Department required a warrant and whether its use was limited to certain officials or needed the approval of a supervisor.

The memo was a distillation of the points Gloria had already raised at two City Council meetings that same year. At one of those meetings, in April 2015, Gloria wound up casting his vote in favor of a technology grant for SDPD’s crime lab but expressed concern over the fact that a portion of the money would be spent on software capable of breaking into people’s cell phones by getting around the password screen.

He also mentioned the city’s use of Stingray tracking devices, which act as “cell site simulators” to figure out which phones, and by extension which people, are located in a particular area.

“We want our officers to have the tools they need, but they have to be done with the civilian oversight that is the hallmark of our nation’s democracy,” Gloria said.

Many of the members on the City Council would probably agree with that statement today. But Gloria was one of the only elected officials saying it at the time.

He left the City Council for the California Assembly in December 2016. A few days later, the City Council signed off on a roughly $30 million loan with General Electric, which laid the groundwork for a system of sensors attached to streetlights capable of collecting video footage as well as public planning and environmental data. That program wound up costing way more than anticipated, didn’t work as well as it should have and was used to investigate Black Lives Matter protesters.

The cameras are still on, but the program is temporarily on pause, held up nationally as an example of how not to incorporate technology into city planning.

The backlash from community groups was so severe that the City Council, on Councilwoman Monica Montgomery Steppe’s lead, approved the first draft of a surveillance ordinance and the creation of a privacy advisory board in November 2020.

As mayor, though, Gloria has been slow to move those efforts along. He told me a few months ago that he needed time to study its implications on city operations. Because the ordinance could impose consequences for employees who abuse technology, the city’s various labor groups have a right to vet it behind closed doors and propose changes. The mayor’s office is a part of those conversations, and the ordinance has yet to emerge for a new round of City Council discussions.

Update: This post has been updated to include a statement from Gloria’s office sent after this post initially published.

Correction: An earlier version of this post attributed the decision to release the memo to the city attorney’s office. The Council administrator made the decision after being advised by the city attorney’s office.

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