The public has a right to know what its officials are up to and what they do with public money. That’s especially true in a highly engaged city like San Francisco, which adopted its Sunshine Ordinance to ensure access to public records.
Sadly, though, Mayor London Breed’s apparent penchant for conducting government business by texting, then deleting the texts, has dimmed the sunshine and kept the public in the dark.
The mayor’s office, it turns out, routinely deletes text messages, even when they have to do with public business, as reported by Mission Local. Often, people who ask for public records are told the mayor has none, even when officials from other departments produce texts Breed has sent them.
Why does it matter what Breed does with her texts?
It matters because San Francisco has an annual budget of $14.6 billion, more than 10 times as much as Columbus, Ohio, which has a comparable population. It also has an enormous workforce that has ranged in the last six years from 34,500 to 36,500.
And it matters because people in Breed’s administration keep getting ensnared in scandals, ranging from former Department of Public Works chief Mohammed Nuru, currently doing seven years in federal prison, to Sheryl Evans Davis, the recently “resigned” department head tasked with leading San Francisco’s multibillion-dollar racial equity program the Dream Keeper Initiative.
Given that Breed launched the Dream Keeper Initiative in 2020, it would be surprising if she and Davis hadn’t exchanged texts about the alleged improprieties, either while they were happening or after Davis got caught. One has to think Breed had something to say to Davis about the program. And if she didn’t, one has to wonder about her oversight of expensive city initiatives.
The mayor’s practice of deleting texts isn’t consistent with the letter or the spirit of California law, and is equally inconsistent with the San Francisco Sunshine Ordinance, which was passed in the 1990s with the goal of going even further toward openness than the California Public Records Act.
The ordinance cautions, “Only in rare and unusual circumstances does the public benefit from allowing the business of government to be conducted in secret, and those circumstances should be carefully and narrowly defined to prevent public officials from abusing their authority.” California law, likewise, prohibits cities from deleting or destroying records less than 2 years old.
But a recent Sunshine Ordinance Task Force hearing, and other examples, showed that the mayor routinely scrubs her text messages. When a person named Hazel Williams asked for city records, the mayor’s office said it had none. But Carla Short, director of San Francisco Public Works, produced a text from Breed that the mayor’s office had apparently deleted, having to do with trash pickup in the Tenderloin.
Similarly, a 2019 lawsuit involving a police raid on journalist Bryan Carmody resulted in the San Francisco Police Department producing records, but the mayor’s office produced only a smattering and no texts on a matter that garnered widespread publicity over weeks. These examples may be the tip of the iceberg when it comes to Breed’s texting and the disappearance of those texts.
When silence speaks volumes
The mayor’s office has never offered a solid legal justification for its practice of deleting texts. It seems to be relying on a 2014 section of the San Francisco administrative code, but that section predates and runs afoul of a 2017 California Supreme Court decision holding that when public officials and employees conduct public business on their “private” electronic devices, the resulting records are public.
In that case, during which I represented news media in the argument to the high court, San Jose argued that public records are only those that the city can access directly. But the Supreme Court ruled against this logic: “This strained interpretation sets legislative intent on its head. The statute’s clear purpose is to prevent an agency from evading its disclosure duty by transferring custody of a record to a private holder and then arguing the record falls outside [the California Privacy Rights Act] because it is no longer in the agency’s possession.”
The Supreme Court strongly encouraged public officials to use government accounts for all communications touching on government business, or at least to keep copies of private accounts on a government server in order to accommodate public records requests. Breed appears to have done neither.
In fact, she seems to be doing the same thing as former San Jose Mayor Sam Liccardo, who, after that Supreme Court decision involving his city, continued to text regularly about public business and was found to have broken the law. Liccardo’s conduct cost the city of San Jose hundreds of thousands of dollars in attorney’s fees and hurt him in the court of public opinion.
Like Liccardo, Breed is not slow to take public credit for decisions she’s proud of. She never hesitates to send out press releases, invite the media to ribbon cuttings, or tout good news when there is some. But when the news isn’t so good, she’s alarmingly silent.
The public has a right to know what happens behind the scenes of Breed’s government, how San Francisco’s public money is spent, and whether, in the words of the California Supreme Court, “corruption, incompetence, inefficiency, prejudice and favoritism” have occurred and might be revealed by the mayor’s records and texts.
Karl Olson is a San Francisco lawyer who successfully argued two Public Records Act cases before the California Supreme Court, including the city of San Jose case.