Issue 30 by San Francisco Public Press

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YOU CAN ALSO LISTEN TO OUR LOCAL COVERAGE ON THE AIRWAVES The Public Press’ daily radio show, “Civic,” features interviews and discussions of emerging community issues. Listen weekdays at 8 a.m. and 6 p.m. on 102.5 FM and find it on major podcast platforms. Coming soon: Coverage of the spring election and U.S. Census.

ONE SFPD STATION RECORDING HIGH USE OF FIREARMS Mission District police are logging more useof-force incidents than officers from any other S.F. police station. And they’re pointing their firearms at civilians twice as often. 3

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WINTER 2020 • ISSUE 30

RIDE-HAILING’S DARK DATA Secrecy cloaks rising accident reports • UBER, LYFT deny responsibility for injuries caused by drivers • CONFIDENTIAL courtroom settlements conceal evidence • STATE COMMISSION hides ride service firms’ safety records By Seth Rosenfeld // Public Press

round midnight on March 13, 2016, Robert Robinson and his wife, Ruth, used the Uber app to hail a ride to their home at the edge of Nob Hill. Uber driver Baher Tamim saw their request flash onto the screen of his device and swiftly picked them up in his white 2015 Toyota Corolla. Nestling into their seats, the Robinsons could not know Tamim already had received more than two-dozen customer complaints about his driving, had been convicted of tailgating and was involved in at least one collision. Tamim drove his passengers east on Post Street, a oneway road controlled by 25 mph signs. An earlier rain had INSIDE stopped and the road was well lit. Ahead of them on Post, JorUBER’S new dan Medina had brought his silver 2014 Lexus CT to a stop for safety report the light at Larkin Street. From his front seat in the rapidly omits most approaching Uber, Robert Robinson saw the stationary car and accidents. 5 started yelling for Tamim to stop, to no avail. Tamim crashed into the back of Medina’s car at 45 mph, according to court LAWSUIT says records, crumpling the rear and right side of the Lexus. Tamim’s passengers car was declared a total loss. dumped on Although Medina was wearing his seat belt, the force of the freeway. 9 impact slammed his head against his car’s interior. After the accident, he would later testify, he was in a concussive state for more LAWMAKERS than five months, in so much pain he could not focus, and eventurespond, urge ally required surgery for herniated discs in his neck. The Robinsons release of also were injured, according to a lawsuit they and Medina later filed information. 11 against Uber and Tamim that forced the company to reveal his driving record. UPDATES: In December, Uber released a long-awaited safety report disclossfpr.es/ridehail ing numerous sexual assaults and accidents and portrayed itself as a leader in corporate transparency, declaring, “People have a right to know about the safety records of the companies and organizations they rely on every day.” However, other studies indicate that Uber’s report did not include thousands of accidents, some of which allegedly caused serious injury, like the Tamim crash. Lyft, its smaller rival, has yet to release its own promised safety report. From their inception, both Uber and Lyft have fought fiercely to keep their safety records secret in court cases and before their primary state regulator, the California Public Utilities Commission. Since 2013, the public utilities commission has required ride-hailing companies to file annual reports containing detailed safety and traffic data statewide. Adopted after intense industry lobbying, the commission’s rules contain an obscure confidentiality clause — a single sentence inserted without public notice as footnote No. 42 — that has prohibited release of

Redacted court documents challenging confidentiality.

RIDE-HAIL continued on Page 4

Graphic Novel Recounts Human Toll of Blaze That Devastated Santa Rosa in 2017 ‘A Fire Story’ explores state’s new normal — deadly conflagrations

A FIRE STORY continued on Page 3

assive summertime wildfires have increasingly become a fact of life in California. A recent study by the American Geophysical Union found that the state’s annual burned land area increased fivefold from 1972 to 2018, due in part to climate change. As summers become hotter, there is more dry vegetation to feed the flames. What is the human toll of these conflagrations? In his graphic novel, “A Fire Story,” Brian Fies answers that question by recounting life after the 2017 Tubbs Fire consumed his Santa Rosa home. The blaze was one of dozens that claimed 44 lives and 6,200 homes that October. The following panels are excerpted from the book, available at sfpr.es/i30-buy-afirestory Read the scientific study at sfpr.es/i30-fire-study

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FROM THE EDITORS

A Free Press Is Taking Root in South Korea

orruption of national leaders. A fragile democracy teetering between constitutional order and authoritarianism. A desperate populace leaning on journalists to hold the powerful to account. While those patterns resonate in many countries — and the news cycle suggests the United States in early 2020 — it’s encouraging to know that journalists across the globe are working bravely to create independent muckraking institutions. That is my take-away from a December trip to South Korea, where a vibrant new journalistic culture has taken hold despite the constant threat of government corruption and control by dominant corporations. Previously under an authoritarian military-led government, South Korea has in recent decades begun embracing democratic norms. That has eased constraints on the press, which in turn appealed to the public for direct support. The emerging civil society there has heeded the call. I was invited by Sisa-IN, the largest-circulation weekly news Michael Stoll // Public Press magazine in the country, to give a talk at a half-day conference Je Kyu Ko, editor of magazine Sisa-IN, with a papier-mâché on investigative and nonprofit journalism at the Korea Press caricature of North Korean “Rocket Man” Kim Jong-Un. Center. Editors and reporters there were eager to hear how independent newsrooms in the U.S. have in the past decade has sustained journalism for many years, is facing crisis, nonattained a market niche that legacy media abandoned. I was profit journalism is often talked as an alternative,” Pyo said in joined by reporters Gwanyul Cheon from Sisa-IN, Inbo Sim his invitation to the conference. “‘Small but strong’ nonprofit from NewsTapa (aka the Korean Center for Investigative Jourmedia have confronted issues that mainstream media have nalism), Joonil Kim from fact-checking site NewsToF, and Sue given up or have failed to cover.” Cross, executive director of the Los Angeles-based Institute for The seven-year-old nonprofit NewsTapa has a budget of Nonprofit News. about $5 million and more than 31,000 individual donors. In a Sisa-IN has a compelling story. The worker-run company country with little culture of philanthropy, it operates without started 13 years ago after Wan Soo Pyo and colleagues at any support from foundations — something few U.S. nonprofit another magazine, Sisa Journal, objected to the censorship of newsrooms could contemplate. It has dozens of staff, and has an article critical of Samsung. With Pyo as its CEO, Sisa-IN built a television studio, community theater and went on to overshadow its progenitor. It rocked the coffee shop in the complex where it operates. Korean establishment in 2017 by publishing a seDONATE NOW In the U.S., as free speech faces increasing ries of text messages between Jang Chung-gi, a vice direct threats from those in power, alternative president of the Samsung Group, and media execuOnline: sfpublicpress. and nonprofit news startups can find inspiration tives who were requesting favors. It illustrated the org/membership and solidarity by looking to counterparts overseas cozy relationship among multinational corporations, Mail: San Francisco Public Press, 44 Page that palpably underscore the role of the press as a the press and government, as well as the regular St., Suite 504, San defender of democracy. threats by corporations to withdraw advertising if Francisco, CA 94102 journalists are too critical. Call: 415-495-7377 “As the advertising revenue model, an axis that — Michael Stoll, Executive Director

PUBLIC PRESS INDEPENDENT NONPROFIT IN DEPTH The mission of the San Francisco Public Press is to enrich the civic life of San Francisco by delivering public-interest journalism through print and interactive media not supported by advertising. 44 Page St., Suite 504 San Francisco, CA 94102 415-495-7377 info@sfpublicpress.org Winter 2020 • Issue 30 (Vol. 11, No. 1) Published February 5, 2020

BOARD OF DIRECTORS

Patricia M. Bovan Campbell • Kaizar Campwala David Cohn • Liz Enochs • Neal Gorenflo Lawrence Groo • Lila LaHood • Lawrence Patrick III Ricardo Sandoval-Palos • Peter Scheer • Michael Stoll

EXECUTIVE DIRECTOR Michael Stoll

PUBLISHER Lila LaHood

DIRECTOR OF MEMBERSHIP & COMMUNITY Daphne Magnawa

ASSISTANT EDITOR Noah Arroyo

COPY CHIEF Kurt Aguilar

CONSULTING EDITOR Jonathan Krim

GRAPHIC DESIGNER Brooks Mencher

CALENDAR GIRL

GRAPHIC ARTIST

Crossword by Andrea Carla Michaels

Calendar Girl3

Andrea Carla Michaels

ACROSS ACROSSArchipelago” 1. Big name in stereo speakers 61. Ballet move 1. Big name in stereo speakers 5. Workplace protection org. 62. Heady feeling 5. Workplace protection org. 9. PC storage medium 63. “October Men” author 9. PC storage medium 14. “The corn is as high ___ 64. Cobbled together 14. "The corn is as high ___ elephant’s eye” (Rodgers/ 65. Detective’s find elephant's eye" (Rodgers/ Hammerstein line) 66. Warhol and Samberg Hammerstein line) 15. Hubbub 67. Hollywood Walk of Fame 15. Hubbub 16. Type of football feature 16. Type of football 17. “JAG” spinoff 68. Ballpark figs. 17. "JAG" spin-off 18. Hula hoops, mood rings, etc. 18. DOWN Hula hoops, mood 19. Mean-spirited rings, etc. 20. She played Betty Draper on 1. “Deliverance” instrument 19. Mean-spirited “Mad Men” 2. Grouchy Muppet played Betty Draper on 23. “High School Musical” director20. She 3. Good Samaritan and then "Mad Men" Kenny/Sandinista leader Daniel some 23. "High School Musical" 24. Borden “spokescow” 4. Follows director Kenny/Sandinista 27. Japanese sport 5. Freeway exit leader Daniel 29. Carlisle of the Go-Go’s 6. Whack, a mole, say 24. Borden "spokescow" 31. Four-poster, e.g. 7. Pilgrimage to Mecca sport 34. Powers role in “The Girl From 27. Japanese 8. Lhasa___ (dog) 29. Carlisle of the Go-Go's U.N.C.L.E.” 9. Star whose name means “little e.g. 36. Baseball’s highest-paid player,31. Four-poster, goat” 34. 10. Powers role in "The Girl e.g. to fans French, Ranch or Italian, from 38. Highest-ranked card 11. LikeU.N.C.L.E." a prof. emeritus Baseball's highest-paid 39. Frances ___ (Judy Garland’s 36. 12. Can. province player, fans former girlfriend real 13. John to Lennon’s 38. Highest-ranked card name) Pang/Kind of pole 39. 21. Frances (Judy Garland's 40. She starred in “The Glenn Miller Water ___ for Juan real name) Story” 22. “All You ___ Is Love” 40. 25. SheAcquire, starredasina"The 45. Bit of sunshine debt Glenn Miller Story" 46. ‘60s-’70s space missions 26. Swelling 45. 28. Bit Non-written of sunshine 47. Falling flakes exams 46. 29. '60s-'70s missions 49. Sing like a bird “God ___space America” 47. 30. Falling 50. Shows the way Troopßakes group 49. 31. Sing likeCalifornia, a bird familiarly 54. 40s pinup, or a hint to Lower 50. 32. Shows way 20A,34A,40A,54A Spewthe forth, like a volcano 54. 33. 40sOrgan pinup, or a hint to 20A, 58. Solzhenitsyn’s “The ___ transplant need

Reid Brown

27 32

Mel Baker

Brian Howey • Seth Rosenfeld

PHOTOGRAPHERS

Yesica Prado • Sharon Wickham

COPY EDITORS

57 62

SOLUTION on Page 12

news and information now and for the future. inasmuchfoundation.org/eejf-home/

Andrea Carla Michaels

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2. Grouchy Muppet 35. Bitterly cold 3. and 37. Good CaviarSamaritan or frogs’ legs then some 41. “Everyone welcome” 4. 42. Follows Dawdle 5. exitbad ideas 43. Freeway Where some 6. Whack, a mole, say look good 7. to of Mecca 44. Pilgrimage Former queen Jordan 8. (dog) 48. Lhasa___ Move like Jell-O 9. whose name means 51. Star “Frasier” character 34A,40A,54A "little goat" 58. Solzhenitsyn's "The ___ 10. French, Ranch or Archipelago" Italian, e.g. 61. Ballet move 11. Like a prof. emeritus 62. Heady feeling 12. Can. province 63. "October Men" author 13. John Lennon's former 64. Cobbled together girlfriend Pang/Kind of pole 65. Detective's Þnd 21. Water for Juan 66. Warhol and Samberg 22. "All You ___ Is Love" 67. Hollywood Walk of 25. Acquire, as a debt Fame feature 26. Swelling Ethics and Excellence in JourThe James Irvine 68. Ballpark nalismÞgs. Foundation’s mission is to 28. Non-written The San Francisco Foundation exams Foundation’s mission is to invest in the future of journalis an incubator for community 29. "God ___ America" expand opportunity for the by building the ethics, skills investment, original ideas and DOWN ism 30. Troop peoplegroup of California. and opportunities needed to passionate leadership in the 1. "Deliverance" instrument irvine.org advance principled, probing Bay Area. One of the nation’s largest community foundations in grantmaking and assets, it has been the primary funder of the Public Press since 2009. sff.org

31. Lower California, familiarly

52. Buy the next round, e.g. 32.Goes Spew forth,fast like a volcanco 53. downhill 33. Organ transplant need 55. Big shade trees 35.Clutter-free Bitterly cold 56. 37.BitCaviar frogs' legs 57. of babyortalk 41.3.5, "Everyone 58. e.g., for a welcome" student 42.Large Dawdle 59. coffee container 43.Tupperware Where some bad ideas 60. burper

44. 48. 51. 52. 53. 55. 56. 57. 58. 59. 60.

look good Former queen of Jordan Move like Jell-O "Frasier" character Buy the next round, e.g. Goes downhill fast Big shade trees Clutter-free Bit of baby talk 3.5, e.g., for a student Large coffee container Tupperware burper

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Officer in Shooting Charged in Beating By Julian Mark // Mission Local

ne of the two San Francisco Police Department officers who shot Jamaica Hampton on Dec. 7, is under disciplinary review for his role in beating, with a baton, an incapacitated man in June 2018. The Department of Police Accountability, the Police Department’s watchdog, charged Officer Sterling Hayes with use of excessive force in the 2018 beating of Jeffery McElroy. The watchdog agency sent its findings to S.F. Police Chief Bill Scott in June, and it’s unclear when — or if — the chief will discipline Hayes. Police Department spokesman Sgt. Michael Andraychak declined to comment on Hayes’ situation, citing it as a “personnel matter.” In addition to allegations of excessive force, a witness testified during McElroy’s criminal trial that Hayes laughed about the beating incident with his partner. Bodycam footage reviewed by watchdog agency investigators allegedly showed him fist bumping a fellow officer after the beating. Despite the pending disciplinary decision, Hayes became an officer who trains freshly graduated rookies from the Police Department academy. And when Hampton’s shooting happened on Dec. 7, Hayes was training his partner, Officer Christopher Flores, a rookie undergoing his firstyear field training at Mission Station. Flores, who is still in his probationary period, could face swift and severe career repercussions in the wake of the shooting. Scott could release him unilaterally, without a Police Commission hearing, if the chief finds that when Flores shot at Hampton, he contravened department

policy. Scott did this in the case of rookie Officer Christopher Samayoa, who shot and killed carjacking suspect Keita O’Neal in the Bayview in December 2017. But the details of the most recent case are different and the case might take a different course. In December, at César Chavez Elementary School, Police Department officials told a largely unsympathetic crowd of community members that Hayes and Flores together shot at Hampton seven times, striking him three times; he was then hospitalized. This came after a brief foot chase precipitated by Hampton assaulting Flores with an 8½inch Grey Goose vodka bottle, officials said. Both the bodycam footage of Hayes and surveillance footage from a nearby hotel show Hayes moving to head off the running Hampton before firing six times at him, striking him multiple times. Surveillance footage also shows Flores shooting at Hampton as Hampton was down on the street and attempting to get up — though at that point Hampton had been shot multiple times and appeared incapacitated. Whether the district attorney decides to charge the officers criminally — and whether the Police Department believes the officers should be disciplined — could take months, if not years, to determine. In the case of the rookie Flores, this time period may be briefer. Samayoa was released by the department four months after he shot O’Neal in 2017. The excessive-force charges looming for Hayes did not prevent him from earning the role of a training officer. As Mission Local reported in October, Hayes and his partner, Officer Michael Marcic, stopped McElroy in June 2018 for riding his bike on

SFPD Tries to Explain Use Of Force at Mission Station I By Julian Mark // Mission Local

n 2019, Mission Station police officers pointed their guns at civilians more often than cops at any other San Francisco police station — twice as often, in fact. In addition to pointing guns at civilians, Mission Station officers are using more force of all kinds than officers at any other police station — even those stations with similar rates of violent crime, calls for service, and arrests. That’s according to San Francisco Police Department data, which Mission Local examined in the wake the Jamaica Hampton shooting on Dec. 7. Hampton attacked the officers with a glass bottle near Mission and 23rd Streets, a chase ensued, and a pair of Mission Station officers ended up shooting Hampton three times, critically injuring him. In the first two quarters of 2019, Mission Station reported twice as many instances of officers pointing their guns at people

than officers at Tenderloin Station (107 instances to 53), and 31 percent more use of force incidents (201 to 146). That’s despite Mission Station deploying 144 officers to Tenderloin’s 157. Through the first half of 2019, Mission officers were flagged at a higher rate in the department’s “early intervention system,” which is designed to track individual officers’ use-of-force, citizen complaints and lawsuits. In the first six months of this year, Mission Station officers received 80 alerts compared to Tenderloin officers’ 50. In 2018, some 78 percent of Mission officers received alerts, while only 25 percent of officers received alerts in the Tenderloin. Department officials said during an Oct. 9 Police Commission meeting that Mission Station’s high use-of-force rates can be explained by its high calls-for-service volumes, and its violent crime and arrest rates. Tenderloin Station, however, is comparable to Mission Station by every one of those metrics. In the first two quarters of

San Francisco Police Department video

Video released by police shows the altercation during which officers shot Jamaica Hampton, 26, near 23rd and Mission streets on Dec. 7. The body camera footage shows the perspective of Officer Sterling Hayes. the sidewalk near 16th and Mission streets. They did a pat-down search of McElroy’s body — which the accountability department found to be out-of-policy because, at that point, McElroy had been compliant. They followed by searching McElroy’s bag, and Hayes and Marcic discovered a handgun in it. McElroy bolted down Mission Street, ending up in a residential garage on Natoma Street at 15th Street. Officers said that McElroy brandished a metal chair at them — and that is why Marcic tackled McElroy and punched him in the face. Marcic testified during McElroy’s July 2018 criminal trial that McElroy was resisting and that the force was justified. (The judge tossed Marcic’s testimony because he found him to be “not credible,” based on video evidence.) During its subsequent investigation, the accountability department found that “subject’s hands were flailing while [Marcic]

was on top of the subject trying to unsuccessfully gain compliance of the subject.” At this point, “Hayes strikes McElroy in the leg with his baton at least four times,” the accountability department wrote of its review of bodycam footage. “Hayes yells at McElroy several times, ‘Stop fighting!’ as he is striking him. While Hayes is doing this, Marcic continues to punch McElroy.” Bodycam footage reviewed by the watchdog agency’s investigators also showed “fist-bumps” between Marcic and Hayes “after the subject was in custody [and] on the ground moaning in pain.” The agency said there was “insufficient evidence” to charge the officers with inappropriate conduct based upon these fist bumps. Both officers denied they were celebrating the beating — but, rather, “it was in recognition of their accomplishment of finding a gun that would no longer be on the streets.” A witness, however, testified under oath

during McElroy’s July 2018 criminal hearing that the officers “were fist-bumping and laughing and pointing at this individual here [McElroy], and I saw high-fiving as well.” Judge Stephen Murphy dismissed all charges against McElroy following the hearing. Hayes’ potential discipline issues for alleged excessive force did not seem to factor in for SFPD higher-ups as they vetted and approved his application. It requires “a positive personnel history,” including “supervisory recommendation, performance evaluations, and disciplinary records,” department spokesman Andraychak wrote. At present, he added, both Hayes and Flores are assigned to “nonpatrol duties.”

2019, Mission Station reported 463 violent crimes to Tenderloin’s 412 — a 12 percent difference. But Mission officers used force 31 percent more than their Tenderloin colleagues, and pointed their guns at civilians at double the rate. Tenderloin Station, incidentally, recorded more arrests in the time period: 1,843 to the Mission’s 1,787. The SFPD does not regularly report callsfor-service — but during the Oct. 9 presentation officials reported that, from March to June, Southern Station, which patrols SoMa, received the most calls at 26,378, followed by Central Station 23,469. Mission Station received the third-most with 22,772. This also appears to belie the department’s justification for the amount of force used by Mission Station officers. But if there aren’t more calls, the SFPD claims the Mission’s are bigger. “What we are finding,” said Sgt. Wesley Villaruel at that Oct. 9 meeting, “is that Mission Station seems to have a higher number of officers engaged in a single event.” He cited one example in which eight officers used 24 different acts of force on three people during a “high-risk felony stop.” This kind of statistical buildup also occurred in the case of Jesus Delgado, an armed teenager whom 10 officers fatally shot with 99 bullets while he was lying in a car trunk in March 2018. Villaruel also said Mission Station

performs a “significant amount of firearm seizures” — but the station is “not too far up there” compared to other stations. Asked for a fresh explanation by Mission Local, SFPD spokesman David Stevenson wrote in an email that the department “is engaging with academic partners to look at our use of force numbers.” (One report analyzing use-of-force was slated to be released in November — but that report has not yet been released, and it was using numbers from 2017.) “Each district faces its own specific challenges, though uses of force continue to decline across all stations,” Stevenson added. “Station staffing is often augmented by outside units — including investigators and Honda [motorbike] units — which may affect arrest rates.” But John Alden, executive director of Oakland’s Community Police Review Agency, said the trend may not necessarily be due to external factors like calls-for-service, arrests and violent crime — but, rather, internal ones. “Every Station at SFPD has a culture, reinforced by each officer’s right to pick their station assignment, so some wonder if this trend is caused by Mission Station’s culture,” said Alden, who was formerly the managing attorney at the San Francisco District Attorney’s Independent Investigations Bureau, which investigates police shootings. Alden added that the SFPD has not yet

used the data it collects to “persuasively and publicly” explain Mission Station’s years of high use of force, citizen complaints and civil lawsuits. He said the department should invest in data-driven “honest self-reflection” to understand the trend — the same manner as departments elsewhere, such as the Oakland and Los Angeles police departments. At those agencies, Alden said, internal investigators analyze use-of-force trends to make improvements and give cogent public explanations. “We haven’t seen any of that yet from SFPD,” he said, explaining that civilian-led auditing of this manner has yet to be funded in San Francisco, and entrusted to agencies like the Department of Police Accountability, the SFPD’s civilian watchdog. John Hamasaki, who sits on the sevenmember Police Commission, acknowledged Mission Station’s high use-of-force numbers — but said “it is difficult to draw any clear conclusions from the raw numbers.” He called for deeper analysis to determine whether the force is “justified by the calls and the reports of violent crime.” Like Alden, Hamasaki said the data could highlight internal issues. “High use of force numbers should trigger further scrutiny to ensure that there are not cultural and training issues at a particular station under particular leadership,” he said.

Originally published in December in Mission Local, a hyperlocal news outlet covering the most pressing issues in San Francisco from the ground up.

Originally published in December.

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The Blaze That Devastated Santa Rosa Rendered as Graphic Novel

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Ride-Hailing Data Is Kept Secret “Not only is the CPUC not listening. This is like out of a Kafka novel.”

RIDE-HAIL from Page 1

the reports, even safety information that has nothing to do with trade secrets or personal privacy, to anyone. Thanks to the industry’s secrecy efforts, and the obliging commission, a full picture of ride-hailing’s track record and its impact on safety is difficult to draw. But a months-long Public Press examination of court records in San Francisco and previously unreported documents at multiple city and state agencies reveals a range of safety issues and efforts to avoid public scrutiny: • More than 150 lawsuits filed against Uber in San Francisco Superior Court since 2013 claim that drivers wrongfully injured other parties in vehicular incidents, with repeated allegations that Uber drivers were poorly trained, distracted by their apps and driving dangerously. Uber and the drivers denied the allegations. • Uber fights such lawsuits with what plaintiffs’ lawyers say are demands for unusual secrecy, though at least three judges in California have rejected the company’s claims that evidence must remain confidential to protect “trade secrets,” finding in one instance that they were “seriously misleading.” • Of 47 traffic fatalities in San Francisco from 2018 through August 2019, seven involved ride-hailing vehicles, according to the most complete tally to date compiled from San Francisco Police Department records. • The police department’s spot enforcement operations have found three years in a row that more than half of the traffic citations issued in busy downtown areas went to ride-hailing drivers for violations such as blocking bike lanes. • Insurance companies incurred $185.6 million in payouts from 9,388 claims related to traffic accidents involving ride-hailing vehicles across California for the years 2014 through 2016, the most recent data available, according to a 2017 joint study by the commission and the California Department of Insurance. • The number of accidents reported by the ride-hailing firms to the commission totaled more than 1,100 per month statewide as of August 2015, with incidents ranging from drivers crashing into other vehicles to running over customers’ feet, according to a 2015 commission PowerPoint presentation that offers a glimpse of the secret annual reports submitted by the firms. More complete and recent data has been withheld from public view. Those confidential annual reports contain detailed information about accidents in California that is far more comprehensive than Uber’s recent public safety report, which included only fatal collisions. But even while the agency kept that data secret for the past six years pursuant to the confidentiality clause in footnote 42, it conducted no other studies of Uber and Lyft’s driver training programs, the adequacy of their programs to screen driving records, and whether there are patterns of accidents that could be addressed through safety measures, according to the agency’s responses to requests made under the California Public Records Act. The commission had prepared only the PowerPoint summary of some accident data and the joint study of insurance claims, according to Garrett Toy, an attorney in the commission’s legal department.

— Aaron Peskin San Francisco supervisor

Photo by Twitter user @DaleMunroe

An Uber driver obstructs a bike lane during a drop-off at AT&T Park in San Francisco in 2017. The commission had produced no other studies of accidents involving transportation network companies, as the firms are officially known, Toy wrote in an email on June 10, 2019. “We have no other reports regarding TNCs and accidents,” Toy wrote. “We have only had one staff member assigned to work on TNCs for much of the past three years, meaning we have unfortunately done little analysis regarding the affects (sic) of the industry.” The agency had audited procedures at only one ride-hailing firm, Zum Services, which serves children, and found no issues, Toy said. “We hope to increase our regulation going forward,” he added.

‘VIOLATION OF DUE PROCESS’ The commission has delayed a decision on whether to make some ride-hailing safety and traffic data public. Only in October, after the Public Press made repeated inquiries about the confidentiality clause in the footnote, did the agency announce for the first time that it would formally review the policy. The commission’s secrecy has for years frustrated officials in San Francisco and

other cities who want the data to improve traffic and safety. “This position is not in the public interest because large swaths of critical — and non-confidential — information are being unnecessarily withheld,” said San Francisco City Attorney Dennis Herrera in a statement filed with the commission. Several former commission officials now say they question the continued confidentiality of the ride-hailing reports. Michael Picker, who was commission president from December 2014 to August 2019, said in an interview that he was not involved in making the rules governing ride-hailing and was not familiar with the footnote. But he added, “It would be good to get at that question of the confidentiality of the reporting. In my thinking, anything that is brought to a public agency cannot be confidential unless it’s truly confidential business information.” Richard Clark, who served as the commission’s director of consumer protection and safety from 2000 to 2012, and then as one of its administrative law judges until 2014, said the agency’s adoption of a sweeping confidentiality measure at the last minute without prior public notice was unusual and “disturbing.” “It’s just a total violation of due process

and the public’s right to know,” Clark said. “Denying the public and, in particular, other government entities access to the information protected by footnote 42 diminishes public safety.” Even the former commission official who wrote the footnote said that the agency should release more data from ride-hailing companies’ annual reports, and that similar data should be released for competitors such as limousine and taxi companies. Marzia Zafar, who was the agency’s head of policy and planning, said, “My own opinion is that, yes, we should make it public.” In response to requests for comment for this story, Uber spokesman Andrew Hasbun provided a written statement that said, “There is nothing more important than the safety of the people we serve and we’re constantly working to improve.” Lyft spokesman Lauren Alexander supplied a statement saying the firm provides millions of rides every day without accident, but added, “Obviously, one incident is one incident too many and we continue to work tirelessly to do our part in creating the safest possible transportation network.” The companies declined to comment on the number of accidents, or any specific event reported in this story, but each noted that a driver’s involvement in an accident

does not mean he or she was at fault. The firms also declined to release their own information about the number and circumstances of accidents involving drivers using their apps in San Francisco and across California, or the resulting cost of injuries or property damage. Terrie Prosper, a spokeswoman for the commission, said no staff could comment on the regulation of ride-hailing because “this is an ongoing proceeding.” However, in a series of emails, she did not dispute that in the last six years the agency had done no analysis of the adequacy of driver training programs, or of accident patterns beyond the PowerPoint presentation. “Within its current staffing,” she said, the agency has “focused on supporting critical policy and enforcement proceedings.” Prosper pointed to three staff investigations. Two of these found that both Uber and Lyft had failed to submit the required annual reports on safety and trip data, resulting in a $30,000 settlement agreement with Lyft and a $7.6 million fine against Uber. The third found in 2017 that Uber failed to comply with a zero-tolerance policy by not promptly suspending drivers accused of driving under the influence, resulting in a $750,000 fine. Citing the confidentiality clause, Prosper declined to release any accident statistics or other data from the firms’ annual reports. She likewise declined to comment on specific cases. “That is confidential pursuant to D.13-09-045, footnote 42,” she wrote in an email, referring to the ride-hailing regulations. Prosper did not respond to a question seeking comment on the Public Press’s finding that the confidentiality footnote was added to the regulations without prior public notice. She said agency rules permit companies and other interested parties to confer privately with commission staff while regulations are being developed. As to any lobbying, she added that “it is the CPUC, through its five Commissioners, that makes the ultimate decision.”

MANY NEW DRIVERS Baher Tamim applied to use the Uber app in April 2015, and the company conducted a background check as required by the commission. As a result, Uber should have known that Tamim had less than the required one year of driving experience in the United States, according to the lawsuit later filed against him and Uber by the Robinsons and Medina. Uber also should have known that only seven months earlier he was cited in Oakland for tailgating, and the next day was in a collision in Hayward. Uber’s website says that all prospective drivers undergo “multi-step screening” that includes computerized checks for driving violations, impaired driving and violent crime. In addition, Uber rescreens drivers every year and uses technology to look for issues in between, the company website says, to “ensure that drivers continue to meet our standards.” Lyft’s website says the firm continuously screens criminal and RIDE-HAIL continued on Page 5

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North Bay Artist Explores Human Toll That

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driving records and can immediately deactivate drivers who don’t meet its standards. Typically, the companies do not interview potential drivers in person. According to the lawsuit, no Uber employee met or spoke with Tamim, let alone questioned him about his driving history. No Uber employees observed his driving abilities. Tamim completed no written tests and received no training manuals, the lawsuit says. Nonetheless, Uber approved Tamim’s application, which is why, he would later testify in a deposition, he saw himself as qualified to transport passengers despite his limited experience behind the wheel. Tamim was one of thousands of new Uber drivers rolling onto the streets of San Francisco, where Uber and Lyft were founded. Just 10 years ago, the idea of summoning a self-employed stranger and climbing into

his or her car for a ride was considered not too different from hitchhiking. But in 2013, California became the first state in the nation to legalize ride-hailing, and its regulations paved the way for legitimizing the industry in other states. By 2016, ridehailing in San Francisco alone accounted for an estimated 170,000 trips daily, or about 15 percent of all trips. In the parlance of Silicon Valley, ridehailing moved fast and broke things. Fueled by a corporate culture of act first and ask forgiveness later, Uber allegedly violated rules and regulations around the country, agreeing to civil settlements totaling more than $217 million between 2014 and 2019 for privacy breaches, safety lapses and deceptive advertising, according to media accounts and public records. Lyft, too, has faced regulatory actions and paid civil settlements, albeit on a much smaller scale. These include $500,000 to San Francisco and Los Angeles counties

to resolve a lawsuit alleging it misled the public about its driver screening, $300,000 to New York State for allegedly violating insurance requirements, $230,050 to Miami-Dade County for drivers who operated without permits, $224,000 to Colorado for allowing a driver with a felony record to transport passengers, and $10,000 to Chicago for failing to notify the city that it had deactivated a driver accused of assault. In that case, the man went on to drive for Uber, during which time he allegedly kicked a taxi driver, killing him. The companies have faced controversies over the safety of their rides. After each episode, they pledged to improve security and transparency. And improvements have been made. In the report it released in December, Uber said that in 2017 it had launched a companywide effort. “We developed new technology, strengthened background screenings for drivers, launched new safety features, overhauled how we train our sup-

port staff, updated our policies, and tripled the size of our safety team,” the report said. Lyft says it has added many new security features to its system. Uber now operates in 63 countries with 3.9 million drivers, and has made more than 10 billion trips. As of 2018, it had more than six times the ride revenue of Lyft, its largest U.S. competitor. Although neither company has turned a profit, Uber is now the city’s second-largest technology sector employer, behind Salesforce. As ride-hailing grew, it also became the single biggest contributor to the increase in traffic congestion in San Francisco. Between 2010 and 2016 it accounted for roughly half of the increase in total miles traveled, road slowdowns and delayed arrivals, according to the San Francisco County Transportation Authority. Although not all experts agree, several studies have concluded that more congestion causes dangerous road conditions and increased accidents. In addition,

urban congestion can lead to overly aggressive driving and crashes, the head of the National Highway Traffic Safety Administration testified before Congress in 1997. Collisions involving serious injuries like the Tamim accident account for a small fraction of ride-hailing trips. But officials at the San Francisco Municipal Transportation Agency said in a 2017 report that ride-hailing drivers may be inexperienced and make midblock U-turns, sudden lane changes, illegal stops and unsafe passenger pickups. The San Francisco Police Department has repeatedly documented such potentially dangerous driving over the last three years, reporting that ride-hailing drivers accounted for the greater share of traffic citations issued during periodic targeted enforcement operations in the congested downtown area. In 2017, Commander Robert O’Sullivan, then head of the department’s traffic unit, RIDE-HAIL continued on Page 6

Uber’s Long-Awaited Safety Report Leaves Out Most Accidents By Seth Rosenfeld // Public Press

“W

e’ve put safety at the heart of everything we do,” declared Uber CEO Dara Khosrowshahi in a blog post on the firm’s website in 2018, one year after taking over the firm. Since then, the San Francisco-based ridehailing giant has advertised that it is “embarking on a new chapter of transparency, connectivity and community right here in the city we call home.” In December, the company sought to position itself as a corporate leader in accountability when it released a long-awaited safety report. It said that in 2017 and 2018 there were 5,981 accounts of sexual assault, 19 fatal physical assaults and 107 people killed in vehicular accidents in relation to its service throughout the United States. Uber emphasized that these incidents constituted only 0.0003% of the 2.3 billion rides during this period and said nearly all of them ended without any safety issue. But the report does not include thousands of accidents involving the Uber app — both fatal and nonfatal — that the firm knows about. The report claims that the rate of trafficrelated fatalities associated with the Uber app is roughly half of the national average

for all vehicular traffic. But by its own account, Uber excluded from its tally of fatal accidents 22 deaths documented in its own records, on the grounds that it could not locate them in the Fatality Analysis Review System, a federal database of traffic deaths. Although Uber cited various reasons why fatalities generally may not appear in this database, the firm offered no details on the excluded cases. Uber also did not include an unknown number of fatalities that occurred during the period when drivers were logged into the app and awaiting ride requests, such as when an Uber driver fatally struck 6-yearold Sophia Liu in San Francisco in 2013. And the company’s report did not include any nonfatal vehicular accidents, which in the general population account for the vast majority of crashes in which someone is hurt, according to the National Highway Traffic Safety Administration. Fatal traffic accidents amounted to just 1.7% of nonfatal injury accidents nationwide, a 2017 agency study found. Two state reports indicate that nonfatal accidents involving ride-hailing vehicles total many thousands just in California. These include the Uber-related accidents that injured Jordan Medina, Ruth and Robert Robinson, and Margaret Schim-

mel, which are described in accompanying stories. One of those state reports, a 2015 PowerPoint presentation prepared by the California Public Utilities Commission, shows that as of August 2015 ride-hailing drivers were involved in more than 1,100 traffic accidents or incidents per month. The second, a 2017 joint study by the commission and the California Department of Insurance, found that ride-hailing accidents and incidents had generated 9,388 claims that resulted in $185.6 million in losses in 2014, 2015 and 2016. Uber is six times the size of its largest U.S. rival, Lyft, suggesting that the majority of the accidents reported in the two studies involved its drivers. These figures do not include any accidents since 2016. Uber’s safety report said it focused on fatal accidents because they are easier to classify consistently and align with the Fatality Analysis Review System. Spokesman Andrew Hasbun did not respond to a request for comment about accidents not included in the report. It is difficult to assess the number of traffic accidents Uber drivers have had in California not only because Uber has not released that information itself, but also because the firm has insisted that the utili-

ties commission, its primary regulator in the state, keep them secret (See: “California Agency Is Hiding Uber and Lyft Accident Reports.”) The commission requires every ridehailing firm to submit an annual report that includes “each accident or other incident” reported to the company, with the cause, date, time, location, whether the driver was found guilty in a criminal prosecution or liable in a civil lawsuit, and the amount paid to any party. But after intense lobbying by Uber and Lyft, the commission in 2013 inserted into its regulations a one-sentence footnote declaring the annual reports confidential. Ever since, the agency has refused to release them to anyone. Uber’s report says that in recent years it has added many new safety policies and features. These include: • Strengthened background checks on drivers. • A “safety toolkit” that contains a suite of in-app features that lets passengers and drivers have friends electronically follow their ride in real time and quickly report emergencies. • Sexual misconduct education materials for drivers and riders.

• Electronic “bike lane alerts” in the app that tell riders when their dropoff point is near or along a bike lane. • A “Dutch reach” awareness video recommending a method of opening doors that helps riders look out for bicyclists. Lyft also has said that it recently added new safety features to its app, including: • Continuous monitoring of drivers for any criminal convictions. • Advance license and photo verifications that let riders confirm the driver and vehicle license plate of their ride before they get in. • Location sharing that lets riders electronically send their route and estimated arrival time to friends. • An in-app 911 button that provides immediate access to emergency help and displays current location and vehicle information. But it will remain difficult to measure how well these features work — and how safe these rides are — until Uber, Lyft and state regulators provide a full accounting of the accident records they continue to keep secret.

Conflagrations Leave in This Time of Change

END

Read Brian Fies’ book, “A Fire Story” sfpr.es/i30-buy-afirestory

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Michael Stoll // Public Press

Ride-hailing drivers at a July 2019 protest in front of Uber’s Market Street headquarters advocating for stronger worker protections.

Suits Allege Driver Error RIDE-HAIL from Page 5

per month during the same period. Terrie Prosper, the commission spokeswoman, said these were all “vehicle accidents” of some kind. According to the presentation, most of these involved rear-end collisions, sideswipes and other “minor incidents.” For example, it noted there were at least:

described the department’s findings in the downtown area for that year at a hearing of the Board of Supervisors’ land use and transportation committee. According to his testimony, ride-hailing vehicles received: • 77% of the 267 citations for driving in, or obstructing, a bike lane or a lane of traffic. • 74% of the 57 citations for making a Uturn in a business district. • 67% of the 1,715 citations for driving in public-transport-only lanes. • 54% of the 567 citations for miscellaneous violations such as impeding the flow of traffic and crossing a double yellow line. • 52% of the 50 citations for failing to yield to a pedestrian. O’Sullivan noted that the vehicles were identified only by their ride-hailing placards. The operation did not tally citations issued to taxi drivers. Aaron Peskin, who was the committee chair, responded, “These numbers are actually shocking.” Katy Tang, who was a committee member, said she often saw ride-hailing vehicles blocking bus lanes, and citations didn’t seem to deter them. She asked what else could be done. The San Francisco Municipal Transportation Agency had already filed 32 statements expressing the city’s concerns about ridehailing firms with the utilities commission, with little result, said agency representative Tom Maguire. “That’s my worry,” Tang said. “I just don’t know that they’re really listening.” To which Peskin replied, “Not only is the CPUC not listening. This thing is like out of a Kafka novel. They will not share public information with the city that the city has repeatedly asked for, and have made incredible claims about the confidentiality of what is public information.” For 2018 and 2019, the Police Department’s downtown enforcement operations have reported that ride-hailing vehicles continued to receive the largest share of citations. According to Brian Wiedenmeier, executive director of the San Francisco Bicycle Coalition, Uber and Lyft have made efforts to reduce collisions with bicyclists, but cyclists still report injuries due to drivers blocking bike lanes or passengers “dooring” them. He added that because Uber and Lyft don’t share complete data on bike accidents “it’s hard for us to know what’s going on.”

1,100+

Ride-hailing accidents reported monthly in California as of August 2015, after which the data were withheld from public view

• 300 episodes of passengers opening a door into traffic, about a third of which resulted in hitting a bicyclist, skateboarder, motorcyclist or scooter rider. • 200 other accidents involving a pedestrian or bicyclist. • 100 incidents of a ride-hailing vehicle rolling over a customer’s foot.

File photos

Two victims in ride-hailing accidents. Left, Jessica Christie, 23, was struck by an Uber driver in November 2018 while motorcycling near Powell and Broadway. She died of her injuries. Sophia Liu, 6, above, was struck and killed by an Uber driver in a crosswalk at Ellis and Polk on New Year’s Eve 2013. Her mother and brother were injured.

In 2014, San Francisco officials adopted a program called Vision Zero, which aims to make streets safer through engineering, education and enforcement. First developed in Sweden in the 1990s, it has spread across Europe and is now employed in several major U.S. cities. San Francisco’s goal is to eliminate traffic fatalities by 2024. The Police Department began compiling the number of ride-hailing vehicles involved in fatal accidents only in 2018. The data show that of the 23 traffic fatalities that year, three involved ridehailing vehicles, including the death of UC Berkeley student Jessica Christie. Of the 24 fatalities that occurred in 2019 through August, four involved ride-hailing vehicles.

There is even less publicly available data on ride-hailing accidents on a statewide basis. The California Highway Patrol collects detailed information on traffic accidents, but the data does not indicate if a ridehailing car was involved. The Department of Motor Vehicles says that it gathers no statistics on the incidence of ride-hailing accidents. Only the California Public Utilities Commission collects statewide data on ride-hailing accidents through the annual reports it requires from the companies, and it has kept that information under wraps pursuant to the secrecy footnote. However, the commission did release two previously unpublicized reports, in response to public records requests, which provide a partial view of the rapid rise in accidents involving

ride-hailing vehicles. The first is a 2015 commission PowerPoint presentation summarizing some data drawn from the firms’ secret annual reports about ride-hailing activity in California. The companies included Uber, Lyft and four small ride-hailing firms. The presentation notes that the number of drivers who completed training required by the commission increased from about 2,000 per month in September 2013 to about 31,000 per month in August 2015, an indication of the high volume of new drivers. The commission declined to release records describing the training, citing the footnote on confidentiality. The PowerPoint also shows that the number of “incidents” and “collisions” reported by the ride-hailing firms increased dramatically from very few in 2013 to almost 1,200

150+

74%

$217M

RUNNING OVER CUSTOMERS’ FEET

Number of injury lawsuits against Uber that the Public Press examined in S.F. Superior Court

The portion of citations given to ride-hailing drivers for blocking downtown S.F. lanes in 2017-2019 police enforcement efforts

Civil settlements nationwide that Uber paid for privacy breaches, safety lapses and deceptive advertising

The most startling detail, however, was the sharp increase in the rate of vehicle accidents involving ride-hailing drivers, from about 1 per million miles traveled as of September 2013 to about 17 as of August 2015. The initial low accident rate reflects the early days of the industry when there were relatively few vehicles on the road and data reporting systems were not yet in place, commission spokeswoman Prosper suggested. The later rate of 17 ride-hailing accidents per million miles traveled appears to be significantly higher than rates for the general population. However, directly comparable statistics are not available because definitions vary. The commission’s reporting requirements may be more inclusive than those used for calculating other accident rates. Prosper acknowledged in an email that although the commission required ride-hailing firms to report “each accident or other incident” involving drivers, the rules did not define those terms. Prosper did not say specifically whether the commission had examined the rate of accidents reported in the PowerPoint, or whether that rate had changed in the four years since. The Public Press’s review of accident lawsuits against Uber suggests that there are recurrent driving-related problems. These include repeated allegations of poorly trained drivers who sped, violated other vehicles’ rights of way, or stopped erratically to load and unload passengers. And though all the court cases that had been resolved were settled in private before trial, shrouding evidence, the commission has legal authority to review the facts in the annual reports and recommend safety measures. RIDE-HAIL continued on Page 7

$500,000

Amount Lyft paid San Francisco and Los Angeles counties to settle allegations it misled the public about driver screening

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Uber spokesman Hasbun said the company works regularly with the commission on various issues, and that even though the information it submits is confidential, the agency could still use it to issue new policies.

MILLIONS IN INSURANCE CLAIMS The second study concerning accidents stemmed from one of the city’s most notorious ride-hailing collisions. On New Year’s Eve 2013, an Uber driver killed 6-year-old Sophia Liu and injured her mother and brother in a crosswalk at Ellis and Polk streets. The mother, Huan Hua Kuang, told reporters that driver Syed Muzaffar was looking at the smart phone in his hand as he drove into them. “I saw the driver. His face was lit up by the light of his phone. That was the last thing I remember before my daughter lost her life,” Kuang said at a press conference, the San Francisco Business Times reported. The family sued Muzaffar and Uber for wrongful death and negligence. Christopher Dolan, the family’s attorney, alleged that the driver was distracted because he was logged into the app. Uber denied liability because Muzaffar did not have a ride order when the collision occurred. The family and Uber reached a confidential settlement, and Muzaffar was eventually convicted of misdemeanor vehicular manslaughter. The case also exposed a gap in insurance coverage, and after the family testified before the state Legislature, Gov. Jerry Brown in September 2014 signed Assembly Bill 2293 requiring that ride-hailing firms carry at least $1 million in insurance coverage for the period when passengers are on board. The law also directed the commission and the state insurance department to conduct a joint study of whether the new requirements adequately covered risks of ride-hailing. Completed in December 2017, the study drew on data submitted to the insurance department by Uber, Lyft and three smaller companies. It included only claims that resulted in payments. The study concluded that there were still potential gaps in coverage for ride-hailing accidents, especially for drivers, and recommended expanded insurance coverage. However, the Legislature has not required it. In addition to determining that insurance companies incurred payouts totaling $185.6 million for the years 2014 through

COMMISSION’S POWERPOINT OFFERS GLIMPSE OF SECRET RIDE-HAILING DATA These 2015 PowerPoint slides prepared by the California Public Utilities Commission summarize details from annual safety reports that ride-hailing firms are required to file and the commission is keeping confidential. Initially low accident and incident tallies may reflect a lack of data reporting systems in the industry’s early days.

“The implications of these new business models on public safety are unknown.” — California Public Utilities Commission 2012 from publicly disclosing records Uber has designated as confidential. Plaintiffs’ attorneys usually agree to the orders because it is costly to fight them and their first duty is to obtain evidence to help their clients, not to inform the general public, the lawyers say. Although court rules favor transparency, judges usually let the lawyers on each side work out the orders and approve them without objection. Uber claims that its records must remain confidential, both to protect personal information about drivers and passengers and to guard “trade secrets” from competitors. However, three California judges have rejected Uber’s secrecy demands.

The driver’s “face was lit up by the light of his phone. That was the last thing I remember before my daughter lost her life.” — Huan Hua Kuang

UNFOUNDED CONFIDENTIALITY CLAIMS

2016, when ride-hailing was taking off, the study showed that the number of claims filed annually likewise accelerated to 6,609 by the end of 2016. The volume of accident claims and damages may continue to increase as ridehailing activities grow, assuming there are no significant changes to the market, according to the insurance department’s press office.

A LITANY OF RIDER COMPLAINTS Almost immediately after Baher Tamim began driving with Uber, the company started receiving passenger complaints, according to the lawsuit filed against him and Uber. On May 31, 2015, a passenger messaged Uber with the first known complaint about Tamim’s driving, reporting that he was going “too fast.” Uber representative Joenard messaged back that “safety and comfort” were Uber’s “top priorities” and that her feedback would be forwarded to the driver operations team. That very day, another passenger sent Uber a complaint, saying, “Unsafe driver. Nearly caused two accidents and excessive speeding.” Uber rep Eric replied, “So sorry to hear about this ride. I completely understand that when you request a ride with Uber, you trust your driver will get you to your destination safely. We work hard to partner with the best drivers, so we are following up with your driver about this immediately.” The rep included a link to the “Uber Safety Team.” Just 39 minutes later, another passenger submitted a third complaint, warning that Tamim “drove very fast and recklessly. Felt like we might crash more than once.” Uber rep Jinky responded with similar reassurances and promised to forward the concern to the driver operations team. But the day was not over. Later that afternoon, another passenger complained, “Driving was very fast and aggressive and frightened my wife,” he said. Uber rep Henry, apparently relying on the same company script, replied, “So sorry to hear about this ride. I completely understand that when you request a ride with Uber, you trust your driver will get you to

your destination safely.” Henry added, “We work hard to partner with the best drivers, so we are following up with Baher about this immediately. We will take whatever action is necessary to ensure a negative experience like this is not repeated.” The rep attached a link to the Uber Safety Team. On June 22, 2015, another passenger sent Uber a complaint saying Tamim “had serious road rage. He even rolled down the customer side window to yell at another driver then aggressively cut him off after dropping off the other customer. He should not be allowed to be an Uber driver.” This time, Uber rep Kimberly replied that Tamim’s account would be flagged and Uber would follow up “right away” to address the issue. “We have a certain set of quality and safety standards that we expect all of our driver-partners to meet, so it’s important that we know of a concern like this so we can address it appropriately.” On June 26, 2015, a passenger complained that Tamim “ran a few red lights very late after they had changed.” Uber rep Michelle sent the stock reply, “Sorry to hear about that! Your safety and comfort are our top priorities so I appreciate your letting us know.” She said the complaint would be forwarded to the driver operations

team to “check with the driver.” On June 27, 2015, a passenger submitted a complaint saying, “Nice guy but pulled crazy driving move where we almost got hit by another car doing 40 miles per hour.” Uber rep Jerusreel promised to refer the matter to the driver operations team to check with Tamim regarding “professional standards.” On June 28, 2015, a passenger sent an even more alarming message: “horrible he was swerving I think he was drunk or high I’ve never been scared in a car with the driver … and I was overcharged!” Uber rep Amanda responded, “So sorry to hear about this ride. I completely understand that when you request a ride with Uber, you trust that your driver will get you to your destination safely and comfortably.” The rep promised to note the complaint on Tamim’s account and “will be following up right away to address this.” The rep also adjusted the fare. Commission rules require that ridehailing companies enforce a zero-tolerance policy against driving under the influence of drugs or alcohol that requires immediate suspension and investigation of drivers who are the subject of credible complaints. There is no evidence in the court record that Uber took any such action in response to the message.

The complaints continued. Between July 1, 2015, and Jan. 8, 2016, passengers sent in 15 more messages describing Tamim’s allegedly reckless driving, aggression toward pedestrians, cutting off other cars, screaming in the car, an unsafe U-turn, running red lights, failure to signal, speeding, texting while driving and what one irate rider called “a very ‘idgaf’ attitude towards other drivers, pedestrians and road rules.”

50%

100+

$185.6M

Approximate share of increased congestion in San Francisco from 2010 to 2016 due to ride-hailing

order to use the Uber platform has stated that Uber provides technology services, not transportation services, and that drivers were “independent contractors.” But this could change. Assembly Bill 5, which took effect on Jan. 1, is intended to require Uber, Lyft and other “gig economy” firms to treat independent contractors as employees, who receive more worker protections and are more costly. Uber and Lyft say they have properly designated their drivers as independent contractors and contend the measure will not reclassify them. Even so, the companies are mounting an expensive campaign to exempt themselves from the measure. In late December, Uber and the delivery service Postmates filed a lawsuit seeking to block the law from applying to them. If Uber and Lyft are required to treat drivers as employees, they could also find themselves facing potentially greater exposure in accident lawsuits, lawyers say, because they could more easily be found liable for acts of employees. In accident lawsuits, Uber has consistently argued that because drivers are not employees it bears no responsibility, and thus owes no “duty of care” to anyone who was injured. Uber also contends that under the contract, each driver has agreed to indemnify Uber and cover its costs for any potential liability arising from the driver’s use of the app. Uber asserts other standard defenses to accident lawsuits, sometimes saying the collision was the plaintiff’s fault. Drivers, represented separately by their own counsel, also deny liability. Moreover, Uber demands a level of secrecy that is unusual for vehicular accident cases, plaintiffs’ attorneys say, often insisting they sign sweeping protective orders before turning over basic evidence in the discovery process. Kyle Smith, an attorney with the firm Bay Area Bicycle Law, said that in his experience ride-hailing firms are “much more concerned with confidentiality.” The protective orders prohibit all parties

Number of fatalities involving ride-hailing vehicles in San Francisco from 2018 through August 2019

Number of times in California a ride-hailing vehicle rolled over a passenger’s foot, from 2013 to 2015

COMPANY DENIES ‘DUTY OF CARE’ Uber ran another background check on Tamim on Jan. 29, 2016, that showed he by now had been convicted of tailgating in Oakland. At some point, he also received at least one citation for blocking an intersection in San Francisco. Still Uber let Tamim use its app to transport passengers, and still passengers complained about his driving. On March 6, 2016 — seven days before Tamim would plow into Medina’s car — a rider reported he “drove too fast, didn’t use wipers in the rain.” Uber takes steps to distance itself from liability for the safety of its rides, both in its contract with drivers and in litigation with passengers. The contract that drivers must sign in

Payouts incurred by insurers to settle 9,388 claims against ride-hailing firms in state from 2014 to 2016

Two years after Uber driver Baher Tamim rear-ended him, Jordan Medina joined Richard and Ruth Robinson in filing a consolidated lawsuit against both Uber and Tamim. As usual, Uber’s attorneys insisted that the plaintiffs’ lawyers sign a protective order before the company would turn over evidence in the discovery process. The order required Uber to designate information as “confidential” only if its release would result in disclosure of “trade secrets or other highly sensitive research, development, production, personnel, commercial, market, financial, medical, psychological, psychiatric, or business information.” The order also strictly limited who could see the material, with some records being additionally designated as “Highly Confidential Attorneys & Experts Eyes Only.” The stated purpose of the order was to protect the privacy of drivers and customers — and Uber’s trade secrets. “If revealed in the public domain, disclosure of such information could and would cause commercial disadvantage, competitive disadvantage, privacy violations; and other damage, both tangible and intangible,” it said. Once they signed it, Eamon Jafari of Barrington Legal, the lead attorney for Medina, and Bryan Vereschagin, the attorney for the Robinsons, began to receive records under the discovery process from Uber that they believed were indeed relevant to their case. Based on that evidence, they asked the court’s permission to allow them to add a claim that Uber had engaged in “gross negligence” — an allegation that the company had engaged in conscious and voluntary disregard of its need to use reasonable care in running its business. Because the evidence was under the protective order, they were required to lodge a heavily redacted version of their motion in the public court file, as well as an unredacted one confidentially with the judge. However, the lawyers also had become RIDE-HAIL continued on Page 8

500+

Number of insurance claims in California resulting in ride-hailing industry losses due to accidents in December 2016

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Yesica Prado // Public Press

Sharon Wickham // Public Press

The California Public Utilities Commission relies on a single sentence in 2013 regulations, footnote 42, at top, to keep industry annual reports on safety secret. Mark Gruberg, at left, a longtime taxi driver and official of the San Francisco Taxi Workers Alliance, called it the product of “backroom dealings.” Richard Clark, at right, a former commission director of consumer protection and safety, called the adoption of the footnote without public notice “disturbing.”

Firms Lay Out Secrecy Arguments RIDE-HAIL from Page 7

convinced that Uber had abused the protective order to “hide documents that are of public interest.” They brought another motion challenging what they called the company’s “meritless” secrecy claims. But — because the records were still confidential — they once again could lodge only a heavily redacted version of their motion in the public court file. The censored version said in part, “Good cause exists to challenge the confidential designation of REDACTED.” It continued, “The challenged documents do not constitute trade secrets, confidential information, or sensitive information.” Some of the information that Uber was withholding, it added, was “of particular relevance to public safety.” The motion noted that California court rules generally discourage sealed filings because the judicial process is presumed to be open to bolster accountability and public confidence. Moreover, the motion cited a legal precedent recognizing that the process regularly provides the avenue by which public and regulatory agencies learn of significant safety hazards, and closing it may harm the public welfare. One document Uber had deemed secret, Jafari argued, “contains the most basic, common sense information that a 16-yearold taking the driver’s test for the first time should already know from a driver’s ed class. It is absurd for Uber Defendants to claim that any competitor would gain an economic advantage by sharing the REDACTED.” Another one — Uber’s Technology Services Agreement — was publicly available on the Internet, he said. In response, Uber doubled down. Danielle Sipf, a senior operations logistics manager for Uber, submitted a sworn declaration saying she had reviewed five kinds of records for which confidentiality was being challenged: a training document, a technology services agreement, a driving report for Tamim, rider feedback about Tamim, and communications between riders and Uber staff about Tamim. All must remain confidential. “If this

confidential and proprietary business information and trade secrets are disclosed,” she declared, “it would be harmful and damaging to Uber’s business.” Uber’s lawyers accused the plaintiffs’ attorneys of challenging the confidentiality claims based on “hyperbole and what appears to be nothing more than a smear campaign against Uber.”

FEDERAL CASE CITED In reply, Jafari noted that a federal district court already had ruled in an unrelated lawsuit that Uber vastly overstated the need for keeping evidence confidential. In that 2015 order, Judge Edward M. Chen of San Francisco examined nine records for which Uber had claimed confidentiality and ordered each released with either no or minor redactions. In one example, Chen noted, Uber had claimed that a record known as Exhibit 21 contains “commercially valuable information regarding past issues with the functionality of the Uber driver application and Uber’s strategies and procedures that it developed to address those issues.” The document, the judge said, was a series of emails between an Uber driver and an apparently low-level Uber employee about the driver’s claim that the app was freezing, causing him to be underpaid. Chen concluded that Uber’s “commercially valuable strategy” was to tell the driver the problem was due to Verizon’s network connection and out of Uber’s control. “Put simply,” he said, “nothing about Exhibit 21 rises to the level of a trade secret or commercially valuable information.” In another example, Chen noted that Uber had claimed a record contained commercially valuable information about Uber’s competitive strategies. “Again, Uber’s description appears false,” he concluded, observing that the record was simply a spreadsheet listing drivers who were “fired” from the Uber platform or had received performance warnings. And in a third instance, Chen found that Uber’s confidentiality claim was “seriously misleading.” This record, he said, consisted of two emails with the heading “ANOTHER

“Lyft would be more open to publicizing the data, but because Uber just would say flat no all the time, Lyft just followed along. So it’s frustrating.” — Marzia Zafar aide to former commission president Michael Peevey

BAD DRIVER.” The first email read, in full, “Get rid of this guy. We need to make some serious cuts of guys below 4.5.” The second email read, in full, “Done via phone! Remote banning — I love it!” In his challenge to confidentiality in the Tamim case, Jafari argued that internal Uber documents about the crash likewise did not qualify as trade secrets.

COURT REJECTS SECRECY “The only harm the production of these documents would cause the Uber Defendants is public awareness that the Uber Defendants are hiring drivers that fail to comply with the California Public Utilities Commission,” he said. On Oct. 2, 2018, San Francisco Superior Court Judge Harold E. Kahn agreed. He adopted the recommendations of a judge who initially reviewed the matter, ordering Uber to reimburse the plaintiffs for their cost of bringing the motion that proved the company’s confidentiality claims “lack merit.” With the seal lifted, Jafari and his legal team proceeded to publicly file the expanded complaint that accused Uber of gross negligence, particularly in hiring and retaining Tamim. Uber and Tamim filed answers denying all allegations. Uber made its standard argument that it was not in the transportation business and was just a software company that licensed an app connecting people willing to drive passengers — its “partner drivers”— with people seeking rides. In other words, Uber claimed it had absolutely no liability for

the accident, despite what it knew about Tamim’s driving record. For his part, Tamim testified in a deposition that he never heard of any complaints about his driving. He said that before coming to the United States from his home in Kabul, Afghanistan, in 2014, he drove on average only about 700 miles a year. Until arriving in the United States he had never driven on a freeway, never driven more than 55 mph and never seen a traffic light. In December 2018, Jafari filed a new motion attacking Uber’s “no duty” defense. It included a stack of documents revealing evidence the company had sought to shield from public view, laying bare both Tamim’s driving history and the firm’s failure to act on it — the background checks, the passenger complaints and Uber’s promises to look into them. Under California law, there is generally no duty to protect others from the harmful conduct of third parties. This is the theory that Uber primarily relies upon in arguing it has no duty of care to passengers. Even when a civil defendant knows of a foreseeable harm and could have acted to stop it, the law has traditionally imposed liability on the defendant only when there is some special relationship between the defendant and the dangerous person or the potential victim. In his motion attacking Uber’s no-duty claim, Jafari argued that the accident was entirely foreseeable in light of Tamim’s driving record. And Uber had a special relationship with Tamim, he contended, via company control over his access to the app and his payments.

Moreover, since Uber had provided riders a platform to make complaints, and since Uber had received numerous complaints that Tamim was a dangerous driver, the company was in the best position to act on those complaints, and thus had a duty to prevent that danger. In addition, Jafari argued, Uber breached its duty of care for passengers because it failed to comply with commission rules that say it must ensure prospective drivers have had a year’s driving experience, that it promptly suspend any driver credibly reported as driving under the influence, and that it bar any driver with a conviction for reckless driving. “Despite the indisputable knowledge of Defendant Tamim’s dangerous driving practices,” Jafari wrote, “the Uber Defendants failed to take sufficient correction efforts.” Uber never replied to Jafari’s motion. Several months later the case settled, secretly. Attorneys representing the parties would not comment. Jafari would say only that the case was resolved. Jeffrey Swedo, a lawyer for Uber, said in an email, “Sorry, we aren’t permitted to discuss those matters.”

COMPANY CONFIDENCES In some ways, the challenge of regulating Uber and Lyft is déjà vu for the California Public Utilities Commission. Following the Gold Rush a disruptive new mode of transportation — the railroads — outpaced regulation. Rich and powerful men named Stanford, Crocker, Huntington and Hopkins neither sought permission nor begged forgiveness as they pushed to expand their interests. In response to the industry’s abuses, voters in 1879 passed a reform proposition that amended the state Constitution and created the Railroad Commission, renamed in 1946 as the California Public Utility Commission. In the following decades, the body assumed regulation of other types of transportation, along with private gas, water, communications and electric utiliRIDE-HAIL continued on Page 9

Photos by Fortune Brainstorm TECH and J.D. Lasica // Creative Commons via Flicker

Uber CEO Dara Khosrowshahi, left, at the 2018 Fortune Brainstorm. He blogged that for Uber, safety is “at the heart of everything we do.” Right, Lyft CEO Logan Green in 2013 at TechCrunch. Lyft is about one-sixth the size of Uber.

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Woman Allegedly Ordered Out of Car, Badly Injured on Busy Freeway By Seth Rosenfeld // Public Press

fter an evening of socializing in Santa Barbara, Margaret Schimmel and her brother, Joseph, hailed an Uber to take them home, but the ride turned into a nightmare, according to a lawsuit they filed against Uber and the driver in San Francisco Superior Court. The case illustrates Uber’s use of secrecy in responding to lawsuits that accuse it and its drivers of injuring people — and the hurdles that accident victims can face in trying to hold the nation’s largest ride-hailing firm accountable. The San Francisco Public Press reviewed more than 150 lawsuits in which plaintiffs claimed they had been injured in accidents involving Uber vehicles. The investigation found repeated allegations that Uber drivers were poorly trained, distracted by their apps and driving dangerously, all of which Uber and its drivers denied. In many of those cases, court records also show, Uber obtained broad protective orders that have hidden evidence concerning accidents and prevented the public and regulators from learning of safety hazards. Uber even refused to comply with the Schimmels’

requests for information such as the driver’s name, impeding the court process and leading a judge to sanction the firm’s attorneys. Margaret Schimmel, a graduate student in biology at the University of California, Santa Barbara, and her brother had summoned the ride using the Uber app at 12:20 a.m. on Aug.18, 2017. About 10 minutes later, a driver pulled up in a vehicle bearing the company’s logo and asked if they were waiting for their Uber. Soon they were speeding along Highway 101, according to their lawsuit. But when they told the driver that he was going the wrong way to their home, the lawsuit says, he began yelling, abruptly stopped at the center highway median and ordered them out of his car, despite their objections. Stranded in the middle of a busy six-lane freeway, they tried to run across the southbound lanes to the safety of the shoulder, the lawsuit says, but Margaret was struck by a hit-and-run driver and her leg was crushed. Joseph dragged her off the highway to the apron. “I was stuck alone on the highway in the middle of the night trying to save my sister from bleeding to death,” he recalled, according to an email in the court record.

An ambulance quickly arrived and took her to an emergency room in critical condition. The next day, Joseph reported the incident to Uber using the company’s app and requested their driver’s name. Uber said it could not determine his identity, the lawsuit says. Their complaint claimed that Uber fraudulently marketed itself as a safe form of transportation but instead provided an “undertrained, dangerous driver” who was inadequately supervised and “acted with gross negligence, causing severe and permanent injury to the Plaintiffs.” The complaint listed the unknown driver as defendant Doe Number One. Uber denied the allegations and asserted 39 affirmative defenses, all in service of the firm’s contention that it had no liability for the alleged incident, including claims that the driver was an independent contractor and that Uber had “no duty” to provide a safe ride. The company also claimed that the Schimmels’ driver was “not associated with the Uber app.” Uber requested that the Schimmels’ lawyers sign a protective order to maintain confidentiality of company records that Uber said contained “sensitive and/or confidential

proprietary business information.” The lawyers signed it, but the discovery process of exchanging evidence broke down. Attorneys Richard Schoenberger and Sara M. Peters, who were representing the Schimmels, filed a motion alleging that Uber’s responses had been “entirely evasive” and that the company was improperly withholding evidence that would identify the driver. The information was necessary to “pursue justice for this tragedy,” the motion said, but Uber had refused to provide it for more than a year. Allison M. Lawrence, an attorney with Tyson & Mendes, a law firm that represents Uber in many accident cases, filed a sworn declaration saying that the company had turned over “all responsive documents in its custody” even though “this matter has nothing to do with Uber.” After reviewing the matter, Judge Richard B. Ulmer Jr. ordered Uber to provide complete responses to the Schimmels’ discovery requests and pay $2,100 in sanctions to reimburse their cost of bringing the motion. Eight months later, on July 12, 2019, the case settled secretly, before trial, as did all the other resolved lawsuits reviewed by the

Public Press. Neither Peters, an attorney for the Schimmels, nor James Sell, an attorney for Uber, responded to requests for comment. As a result of the secrecy, no information about the driver, his record, or his relationship with Uber, has become public. The Schimmel case is one of thousands of nonfatal accidents involving Uber drivers in California that, government studies indicate, the company did not include in its widely publicized December 2019 safety report. Uber spokesman Andrew Hasbun said in a written statement that the company would not comment on specific cases, but that all drivers are expected to adhere to the company’s “community guidelines,” which include treating everyone with respect and following the law. The statement also said that Uber had improved its background checks of drivers. Margaret Schimmel, meanwhile, continued to receive medical care and eventually returned to her biology classes in a wheelchair.

Illegal Effort To Influence RIDE-HAIL from Page 8

ties. (Regulation of taxies was left to local authorities.) Today the agency has five commissioners appointed by the governor and jurisdiction that preempts local authorities. One of the commission’s first actions on ride-hailing came in 2012: a “cease and desist” order and $20,000 fine each against Uber, Lyft and the now defunct Sidecar for operating without permits. The startups replied that they were not transportation businesses but were instead technology companies, and thus beyond the commission’s jurisdiction. The commission never enforced the orders. It reached settlements that allowed the firms to continue operation with interim safety and insurance measures while it began a formal regulatory proceeding “to protect public safety and encourage innovators to use technology to improve the lives of Californians.” As the commission observed in its opening order, “The implications of these new business models on public safety are unknown.” On Sept. 23, 2013, the agency issued its first decision on what came to be called transportation network companies, also known as TNCs. It required each company to obtain a permit, conduct criminal background checks of drivers, establish driver training programs, review drivers’ records quarterly, inspect their vehicles annually, adopt a zero-tolerance policy on drugs and alcohol, and carry specified insurance. Spanning 75 pages, Decision 13-09-045 required each firm to detail in its annual reports the number of rides requested, accepted and rejected by drivers within each ZIP code; the average number of hours and miles each driver drove; and the percentages of passengers who requested and received disability-accessible vehicles. Each company was further required to submit a spreadsheet on safety problems with drivers, including every “accident or other incident” reported to the company, with the cause, date, time and amount paid to any party. Each firm also had to report all zero-tolerance drug and alcohol complaints and findings, the number of drivers found in violation and the number suspended. (As noted, Uber and Lyft have not always complied with this reporting. In 2016, the commission found Rasier-CA, an Uber subsidiary, in contempt for failing to file required annual reports, making “specious legal arguments” about why it failed to comply and impeding the commission’s Safety Enforcement Division. The agency fined the company $7.6 million. RasierCA challenged the decision, but in August 2019 the commission affirmed the penalty, noting that the company had failed to cooperate and acted in “bad faith.” In a less egregious case that was settled in 2015, Lyft also failed to comply with the reporting requirements but cooperated, corrected the deficiencies and agreed to pay a $30,000 fine.) The commission had required the ridehailing companies to submit the annual reports, but in the same breath it had decreed them confidential with the furtive footnote. The single sentence, buried at the bottom of page 33 of Decision 13-09-045, said: “For the requested reporting requirements, TNCs shall file these reports confidentially unless in Phase II of this decision we require public reporting from TCP companies as well.” TCPs are companies with transportation charter permits to operate tour buses, limousines and farmworker transporters. As it turned out, the commission never required detailed annual reports from them, and hence made no disclosures for either charter carriers or ride-hailing firms. Neither the footnote, nor any reference

“In the wrong hands” ride-hailing data “could allow stalkers to track their victims.” — Uber statement to commission to making the annual reports confidential, appeared in a draft decision that the commission distributed for comment on July 30, 2013. Nor did any mention of it appear in any public comments filed prior to the commission’s approval of the final decision.

BATTLE OVER CONFIDENTIALITY On the basis of this footnote, the commission has denied all requests for access to the annual safety information and trip data from journalists and local government officials, according to agency statements and records, including the city attorneys of Berkeley and San Francisco, the San Francisco County Transportation Authority, Hoodline, MarketWatch and the Public Press. But in June 2017, the commission announced it would consider releasing some data from the annual reports and solicited comments. In his opening statement, Dennis Herrera, the San Francisco city attorney, attacked the agency’s denial of his request under the California Public Records Act for the annual reports on safety, problems with drivers, and ride statistics. “The Commission’s seemingly unilateral decision to make the reports confidential, in a footnote, without any mention of applicable statutory exemptions or the public interest served by disclosure, is at odds with the law and the purpose and goal of the CPRA,” he said. Herrera said he wanted the information for an investigation into whether ridehailing firms were violating laws on civil rights, public nuisances and the minimum wage. Ultimately, he was forced to obtain an order from a state appeals court to enforce a subpoena requiring Uber to release the information directly to him. (Lyft previously complied with a separate subpoena.) Even so, the records remain under seal at the city attorney’s office, and the utilities commission still refuses to release the annual reports to anyone. The San Francisco County Transportation Authority also filed a statement calling for the release of the annual reports, saying they would help it study traffic patterns, air quality and potential gaps in service to disabled people. The authority noted that in many California cities taxis are required to submit trip data to regulators. In San Francisco, for example, taxis electronically provide trip data in real time. The San Francisco International Airport and the San Francisco Municipal Transportation Agency filed a joint statement saying they needed the annual reports to improve safety and asked, are ride-hailing vehicles “involved in collisions at a higher rate than the general population?” They also pointed out that ride-hailing companies already provided similar data to other cities, including New York, Chicago and Portland. But in its statement, Rasier-CA, the Uber subsidiary, declared that “the commission should not share” the annual reports with other agencies. While allowing that the reports could be useful to local governments, Rasier-CA said their interest was outweighed by the need to protect the privacy of drivers and passengers and the firm’s “trade secrets.”

Max Whittaker // Wall Street Journal

After working as a commissioner and Gov. Arnold Schwarzenegger’s chief of staff, Susan P. Kennedy went to lobby for Lyft in late 2012, just as the utilities commission was considering how to regulate the new ride-hailing companies.

Rasier-CA contended that local governments were incapable of protecting ridehailing data — even if it was anonymized — from hackers or inadvertent disclosure. Like its rival, Lyft said the annual reports contained personal information and confidential trade secrets. Lyft joined Rasier-CA in asserting that the information was exempt from release under the California Public Records Act. Invoking footnote 42, Lyft said it had submitted the annual reports to the commission “in reliance upon the Commission’s determination in Decision 13-09-045 that such data would remain confidential.” In February 2019, the commission, still mulling whether to share the data, solicited additional comments. By now it had taken a step forward and was proposing a public data portal that provided trip data in anonymized and aggregated form. But as proposed, the portal included no safety data. At this point Uber and Lyft said they agreed with publicly posting some aggregated data but still objected to including any individualized data. “In the wrong hands,” Uber warned, ride-hailing data “could allow stalkers to track their victims, undermine the confidentiality of media journalists, and assist burglars from (sic) monitoring target homes.” As of early January, the commission had given no sign of a forthcoming decision, and had requested additional comment on whether it should reverse footnote 42 and make data in the annual reports public. Uber filed new statements saying the commission should not modify the confidentiality footnote and the data should remain secret. Lyft said that all previously filed annual reports should remain secret, but did not oppose “reasonable” modifications to the footnote as applied to future annual reports — as long it could challenge any possible disclosures in court. Asked if Lyft’s secrecy efforts were contrary to its public statements in support of safety and transparency, spokesman Lauren Alexander said in an email that the firm was “entitled” to request secrecy when appropriate, calling the annual reports “highly confidential.” Uber spokesman Hasbun did not respond to a request for comment on whether the company’s public statements in support of transparency were inconsistent with its efforts to keep the annual safety reports secret. In December, the commission directed

Uber to provide information about the firm’s public safety report, including the number of sexual assaults in California between 2017 and 2019, names of witnesses and procedures for addressing the incidents. Hasbun did not comment on those matters, but said Uber had “serious concerns” about naming sexual assault victims without their consent.

INDUSTRY LOBBIED HEAVILY Mark Gruberg, a longtime taxi driver and official of the San Francisco Taxi Workers Alliance, which represents some 500 cabbies in the city, said in a statement to the commission that he thought footnote 42 was nothing but the product of “backroom dealings.” It is true that there is nothing in the commission’s extensive public record about why the footnote was added, at whose request, or who slipped it in. But a former senior commission staff member said in an interview that it was her doing. Marzia Zafar was a top aide to commission President Michael Peevey, who oversaw the proceeding that created the ride-hailing regulations known as Decision 13-09-045. A former president of Southern California Edison, Peevey left the commission in 2014 in the midst of a criminal investigation into whether he engaged in prohibited back-channel communications with his former employer about the assignment of costs for its failed San Onofre nuclear power plant. Peevey never was charged and he has denied engaging in any improper activities. Zafar was deeply involved in the drafting of Decision 13-09-045 while the firms lobbied the commission. Uber, Lyft and Sidecar sought to influence the rules through publicly filed documents and — according to emails and published comments of former agency staff — through private communications. These company efforts are obscured, however, because commission rules allow ex-parte, or private, communications to go unreported. But an investigation by the state’s Fair Political Practices Commission found that a consultant for Lyft engaged in extensive illegal lobbying on Decision 13-09-045. Susan P. Kennedy went to work for Lyft in late 2012, just as the utilities commission was considering how to regulate the new transportation network companies. Kennedy had served as a commissioner from 2003 to 2006 and as Gov. Arnold Schwarzenegger’s

chief of staff from 2007 to 2011. Lyft paid her $15,000 per month. The utilities commission already had issued the cease-and-desist orders to Lyft and Uber for operating illegally earlier in 2012. But after Lyft retained her, Kennedy contacted Peevey and other commission staff to convince them to “work with the TNCs, not shut them down,” the political practices commission said in an order. As Kennedy put it in an email to Commissioner Carla J. Peterman on Aug. 27, 2013, a few weeks before the commission unanimously approved the decision, “We spent months going over how each and every provision would be implemented.” The political practices commission found, “The efforts of Kennedy and Lyft were successful as the resulting rules and regulations adopted many of the suggestions and positions put forward by Kennedy and Lyft.” In an interview, Zafar said she drafted the ride-hailing regulations. “I know I ghost-wrote that decision, but it’s been a few years. I don’t quite remember it, why I put that footnote there,” she said. “But I would think it’s because we consulted with all the interested groups. And a lot of it had to do with, I’m sure, Uber and Lyft lobbying us constantly saying that it has to be private.” Zafar initially discounted Kennedy’s influence but later added, “I think she lobbied a lot. I think she called me a lot. I think she called Peevey a lot. She met with us a lot. But a lot of people met with — OK, sure, she met with us more. But I’m not sure that she had more influence. Just because you come in and you knock on the door and you say this must be done, that doesn’t mean we did it for that reason.” She added, “I dealt with John Zimmer” — the Lyft cofounder and president — “more than I did with Susan Kennedy.” Zafar, who left the commission in 2018, emphasized that making the annual reports confidential did not loom as large as many other issues at that time. She said it would have been unfair to require ride-hailing firms to publicly report data that other kinds of transportation companies did not. But even though the commission had deemed the annual reports secret, the ride-hailing companies resisted submitting the information. “I was frustrated with Uber and Lyft for being so aggressive in not giving us any sort of data, even if we said RIDE-HAIL continued on Page 10

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Despite Crash, Uber Kept Driver RIDE-HAIL from Page 9

we would keep it confidential,” she said. “I would say Lyft was a little more open to giving us data, or Lyft would be more open to publicizing the data, but because Uber just would say flat no all the time, Lyft just followed along. So its frustrating.” Looking back, Zafar said, “My own opinion is that yes, we should make it public, but at the same time, whatever we make public, the taxi industry also has to make that data public.” (In fact, Kate Toran, taxi director at the San Francisco Municipal Transportation Agency, said that though her agency gathers safety data from taxis only on an as-needed basis, it is made available under

public records laws.) However, Kennedy failed to register as a lobbyist and file lobbying reports with the state about her actions on behalf of Lyft, according to the political practices commission order, which fined her $32,500. “In this case, the violations were serious since the public and other interested parties were not informed of Kennedy’s lobbying activity,” it said. Lyft was not found culpable. Kennedy, now chair of the board at Advanced Microgrid Solutions, a high-tech energy-storage software firm she founded, did not respond to an email and multiple letters seeking comment. Lyft spokesman Alexander said the company did not pressure the commission to act. Hasbun, the Uber spokesman, did not respond to a ques-

tion about Uber’s lobbying. Prosper, the commission spokeswoman, did not respond to questions about the creation of the footnote that has kept the annual safety reports secret. But she said the commissioners make their own decisions.

THE LAST CRASH Several minutes after Baher Tamim ran into the back of Jordan Medina’s Lexus at Larkin and Post streets, passenger Ruth Robinson sent Uber a message saying everyone had been injured, according to court documents. Uber rep Shiann replied, “I am so sorry to hear about the accident on your recent trip. I’m glad to hear you are okay. That’s

certainly not the experience you expect when taking a trip with Uber, and I’ve of course refunded this fare in full. You should see the difference back in your account in 2-3 business days. We’re also following up with this driver on our end. If there are any further details you think we should know about this, feel free to reply here.” Robinson responded with another message saying that Tamim had hit Medina’s car without having braked at all. “I heard my husband shout something like “are you going to stop, STOP! And then car just exploded inside. I was flung forward and hit the airbags.” Now her spine and neck hurt, and her nose was swollen and bleeding. Medina had gone to the hospital and she

was going, too. “The only way this incident could have happened is that our driver was not looking where he was going or had fallen asleep,” added Robinson, a former traffic officer. “This man should not be driving people around.” Uber temporarily suspended Tamim’s access to the app and, as he later testified, he feared that he’d lose his “job” with the company. But soon after, Uber lifted the hold and Tamim was once again driving with the app. It was not until after he had another collision while transporting passengers, less than a month after he hit Medina’s car, that Uber finally cut him off.

California Public Utilities Commission photo

Members of the California Public Utilities Commission at a meeting in Redding last year. The agency requires ride-hailing firms to file annual safety reports, but keeps them secret pursuant to footnote 42.

Lawmakers Urge Release of Accident Information ‘No justification’ to keep data secret

Assemblywoman Lorena Gonzalez, shown in her office last year, wrote to the commission regarding nondisclosure issues.

By Seth Rosenfeld // San Francisco Public Press

wo state legislators and the chairman of San Francisco’s transportation board say the California Public Utilities Commission should release secret safety records on thousands of ride-hailing accidents. Their comments came in response to a San Francisco Public Press investigation that found the agency has been keeping confidential reports on accidents involving Uber, Lyft and other app-based transportation firms for more than six years. “Crash data for ride-hail services should not remain secret,” San Francisco Supervisor Aaron Peskin, who chairs the county transportation authority board, said in an email. “There is no reasonable justification for withholding this information from first responders, data analysts and public policy makers, all of whom rely on good data to ensure the safe operations of ride-hail services for the traveling public and all road users.” The utilities commission is the only agency in California that collects comprehensive data on ride-hailing safety through annual reports it requires from the firms. But the Public Press found that it has kept the data under wraps on the basis of a confidentiality clause — a one-sentence footnote — that was inserted into its regulations in 2013 amid heavy industry lobbying, without public notice. San Francisco and other jurisdictions throughout the state have told the agency they need the data to improve road safety and traffic management. But Uber and Lyft have opposed making it public, and the commission has refused to release it to anyone. Only in October, after the Public Press made multiple requests for the safety data and information about the origins of the footnote, did the agency say for the first time that it would reconsider the confidentiality clause. Sen. Jerry Hill, who represents San Mateo and northern Santa Clara counties, chairs the subcommittee on gas, electric and transportation safety. Hill said in a text message that the annual reports submitted to the commission should not be completely confidential, and should be subject to the California Public Records Act. “Transparency should be the underlying premise for these reports,” Hill wrote. Any claims that information must be withheld as ‘trade secret” should be “weighed against the overarching concerns for public safety and public good.” Assemblywoman Lorena Gonzalez sent a strongly worded letter to commission President Marybel Batjer in response to the Public Press investigation. “I welcome this review, especially in light of recent, troubling reports of the spotty safety record of some of the TNCs,” Gonzalez wrote on

State Assembly photo

WHAT THEY’RE SAYING ON TWITTER ABOUT RIDE-HAILING SECRECY

Jan. 9, referring to transportation network companies, as ride-hailing firms are known. “As the commission considers modification to its TNC data regulations, I implore it to keep in mind the health, safety, and welfare imperatives that justify access to the TNC data,” she added. Gonzalez, a San Diego Democrat and chair of the Assembly Appropriations Committee, noted that the agency’s decision to keep the data secret was discretionary. “It is important for the commission to keep in mind that state law does not require the commission to maintain the confidentiality of TNC data, as a general matter,” she wrote. “And there is compelling reason to make such data available to government agencies and, in some cases, the public at large.” In an interview, Gonzalez said she was awaiting the agency’s reply, but “we’re prepared to legislatively override, if possible, to audit and use all the tools possible to get them to change their procedures. It’s too important.” She initially had weighed in with a tweet: “It’s more than shameful that the CPUC seems to have given these companies a pass when it comes to public safety and transparency. They let Uber/Lyft write their own rules & then let them hide the consequences from all of us.” Gonzalez has been focused on the ride-hailing industry for some time, and authored Assembly Bill 5, which took effect on Jan. 1. The law is intended to require Uber, Lyft and other “gig economy” firms to treat independent contractors as employees, which would give them more job protection but also make them more costly to hire. The firms have maintained that their drivers are properly classified as independent contractors, but are nonetheless mounting a costly ballot initiative campaign to exempt themselves from the law. Uber and Postmates, a delivery service, also have filed a lawsuit challenging the measure. Loretta Lynch, who was president of the commission from 2000 to 2002, said in an email to KGO Radio talk show host Pat Thurston that the agency’s decision to keep the data secret was “a very stinky deal.” “It shielded Uber and Lyft from almost all regulation by the cities, who have been hamstrung by the PUC’s let’s just say ultra minimalist regulation,” Lynch added. Hill noted that agency president Batjer took office in August. “I’m encouraged that the new leadership at the public utilities commission is looking seriously at this issue,” he said. Terrie Prosper, a spokeswoman for the commission, said the agency would respond to Gonzalez’s letter. Representatives of Uber and Lyft did not respond to questions about whether company officials believed that safety data could be released while still protecting trade secrets and private information. On the basis of the footnote, the commission has denied all known requests for the safety data from government officials and other parties. The commission has regulatory authority over ride-hailing firms, while local jurisdictions regulate taxicabs.

SAN FRANCISCO PUBLIC PRESS, WINTER 2020| SFPUBLICPRESS.ORG | 11

A child doodles in a coloring book in an industrial neighborhood in Berkeley while the parents run errands. The family lives alongside other vehicle residents who support each other — in this case, a neighbor helps with child care. This community will face new obstacles to remaining intact when a ban on parking recreational vehicles overnight within city limits, passed in 2019, activates this year.

Photos by Yesica Prado // Public Press

VEHICLE SWEET VEHICLE By Noah Arroyo // Public Press

an Francisco, like some other Bay Area cities, is home to hundreds of people who live in their vehicles. What are their lives like? How do they hold down jobs? How do they maintain friendships? Why do they reside in their cars, vans or recreational vehicles, rather than houses, apartments or dorms? The Public Press will explore these questions in a forthcoming photo project, by journalist Yesica Prado, to be published in our spring 2020 print edition. The project will look at the world through the eyes of people who daily sidestep, and often overstep, local

regulations in order to survive. Now is an important time for this examination, as San Francisco crafts policies and programs in direct response to this population. The city has opened a Safe Overnight Parking Pilot program near the Balboa Park BART Station, with slots for 20 vehicle dwellers to park and live while staff try to help them get into permanent housing. But the city’s response falls far short. San Francisco has experienced an increase in the number of residents living in vehicles. City staff in October counted 719 vehicles-as-homes, up from 432 a year ago, the Public Press recently reported. Separate, biennial point-in-time counts of San

Francisco’s homeless population have tracked a rise in vehicle residency since 2015. In that year, 13% of the people counted were observed living in vehicles; they represented 28% of those counted in 2017, and 35% in 2019. Prado is well poised to lead this project. She lived in a vehicle while obtaining her master’s degree in journalism from the University of California, Berkeley, and after graduation as she explored activism and journalism. This project was made possible by CatchLight, a nonprofit organization that provided resources and guidance in visual storytelling through its Local Initiative.

Tantay Tolbert lives in her recreational vehicle in the industrial part of Bayview-Hunters Point where, compared with other neighborhoods, she is less likely to draw complaints that force her to relocate, she says. But on one morning in the fall, she received a notice giving her 72 hours to move or be towed. San Francisco’s District 10 is home to 45% of the city’s vehicle dwellers, according to a recent count.

CatchLight serves as a transformational force, urgently bringing resources and organizations together to support leaders in a thriving visual ecosystem. The CatchLight Local Initiative launched in 2019, connecting powerful visual storytellers directly with local newsrooms and community members to strengthen trust and representations of critical social issues. For more information visit catchlight.io/local.

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Illustration by Nate Kauffman for Bay Nature

Flooding Might Come Where We Least Expect It As the seas rise, groundwater could inundate inland areas

cally on San Francisco, you’ve talked in the past about “cyborg” landscape and “hybrid edges.” And I’m wondering if you could lay out in layman’s terms what we could expect to see in this city to respond to sea level rise.

By Laura Wenus // Public Press

an Francisco is surrounded on three sides by water, but it may not necessarily be on the waterfront that we see the most devastating impacts of sea level rise. As part of its coverage of the climate crisis for a media collaboration known as Covering Climate Now, “Civic” host Laura Wenus spoke with Kristina Hill, a UC Berkeley associate professor specializing in landscape architecture, environmental planning and urban design. She shared her concerns about the shortcomings of San Francisco’s plans to adapt to sea level rise, and how it might learn from other cities’ strategies. The interview has been edited for length and clarity. You can hear the full version by visiting the Public Press’ website at sfpr.es/2019-civic-waterfront. Laura Wenus: San Francisco is a waterfront city, the tip of a peninsula. What would residents notice first in terms of impact from sea level rise? Kristina Hill: Well, the earliest effects are going to be the continuation of flooding — the king tides, the biggest astronomical tide of the year — at places like the Embarcadero. So people are already seeing sea level rise. It will not take much for that floodwater to cross the– to get onto the travel lanes of the street there and to block more than the sidewalk, which is mostly what gets affected now. So it’s a matter of, you know, millimeters or an inch would make a difference in how much of that street flooding people notice as they’re driving through that area or taking the bus. Wenus: What are some of the more serious side effects of sea level rise that we might, in our everyday lives, not be cognizant of at first or see immediately, but that are really urgent? Hill: Probably the biggest one is one I’ve been talking to people a lot about here in the whole Bay Area. And that is that rainwater goes into the soil when it rains and gets stored there, and that’s called groundwater. And that groundwater is really shallow in a lot of places around San Francisco’s edge and around the Bay Area generally. And as the sea level comes up, it’ll start to move — it has already begun to — move that fresh water lens higher. So the first risks of flooding, that would affect people’s structures, for example, are probably going to be from groundwater because that’s maybe a foot, 6 inches, higher than the sea level in any given point by the bay.

CROSSWORD PUZZLE SOLUTION FROM PAGE 2

Hill: Absolutely. And in fact, I would say that’s one of the first things we should be addressing in planning for sea level rise, because we’ve discovered that strategies used in the 1980s and the 1990s to cap contaminated soils — with concrete or clay and earth — have left them vulnerable to water rising from below. They weren’t lined, those sites. So I think we’re at some serious risk of potential remobilization. And even though government agencies like the regional water board have done their best to monitor, sometimes those cases are closed or there’s no funding to monitor. So I don’t think we’re getting information that we need to know whether those sites either had contamination adequately removed or whether they were really neutralized and not a health risk. Wenus: Is there something that can already be done? Are there mitigation steps that can be taken without that needed information? Hill: We can start looking at where the existing contamination is. And we know where most of those sites are. It’s just a question of what level of contamination is still left there. And in some cases, there’s a shockingly high level of contamination left, like with the radioactive soils at Hunters Point. And in other cases it may have degraded in the soil. An old leaky oil tank from a gas station, for example — those volatile organic chemicals may have already moved out of the soil into the air and be long gone. So we have to look at where those historic contamination sites have been. And then what is the strategy for containing contaminants that could emerge, that could come from that site, as groundwater rises? Wenus: Cities have used the California Environmental Quality Act, which we refer to as CEQA often, to compel adaptation to climate change. And the Public Press has reported that this law has been slowly weakened over time, actually, by legal challenges from the building industry. It’s

“I am a big believer in aligning the interests of the environmental community ... and the interests of the housing market, because I don’t think we should benefit one and take away the other.” — Kristina Hill associate professor, UC Berkeley still used, it’s still in effect, but do you have thoughts on the state of CEQA and how it’s being used? Hill: Well, research that I’m aware of has shown that CEQA has mostly been used to prevent infill development. And that’s at the scale of the whole state, not just in San Francisco. But I would say CEQA has been misused to try to prevent development on a kind of NIMBY [“not in my backyard”] basis more often than it’s been used and abused by developers even. And it’s set up as a sort of checklist, like, are you going to cause any oak trees to be taken down? Are you going to create any additional impact on noise or air quality? And that’s not very useful for looking at a change in the environment like sea level rise. There’s no checklist item for that. Wenus: Is there a framework that you know of that does a better job of compelling adaptations to sea level rise, climate change, sustainability, etc.? Hill: I don’t know of a framework yet, but I know that public agencies are working on revising permitting approaches. People who’ve been trying to do innovative projects for adaptation feel that the permitting hurdles are really just a series of gates where people say no to you. It’s been difficult to do innovative work. And it’s been hard to streamline the process of getting permitting. It takes so long to build stuff. And to have, for example, wetlands in place just to reduce wave energy and provide habitat, that’s, like, a 10-year process. So if we want those wetlands to be valuable, as we’re going through the early stages of sea level rise, we’d better get started. Wenus: I want to ask you more about what adaptations to sea level rise could look like in San Francisco and maybe around the Bay Area. But focusing specifi-

Wenus: How does a floating house respond to an earthquake? Doesn’t an earthquake produce waves? I’m having a hard time picturing this. Hill: I’m not talking about floating on the bay. Waves are the enemy of anything floating. But if you make a kind of honeycomb of polders, those are separated from the wave energy of the bay by some kind of dyke or seawall. And then what you’re floating on is that groundwater that rises on the inland side of whatever your edge is with the bay. But it allows those edges to be smaller. The height of any kind of dyke or levy along the edge, or wall, can be smaller. Because if you have overtopping — where waves come over the top — it’s just going into a pond. So it’s not going to cause a disaster. And that’s called floodable development. And that’s an idea people have been working on and building for in Hamburg in Germany, and in Amsterdam and Rotterdam in the Netherlands. So we could actually see examples of it. And in a way, our Mission Bay, Mission Creek area, where they’ve mounded up the ground, is an example of floodable development. It’s just that you can’t raise the ground everywhere without lowering the ground somewhere. So we have to find a way to balance the cut and fill of what we raise and what we lower. Wenus: The Public Press has done a lot of reporting about sea level rise and new developments being approved for areas that, under some predictions, will be affected by sea level rise in the foreseeable future. So I’m wondering what a comprehensive planning strategy related to sea level rise would look like in San Francisco and if that’s different from what we’re doing now? [You can find the full special project “Wild West on the Waterfront” on our website at sfpublicpress.org/searise] Hill: Well the biggest omission, I think, has been looking at groundwater. Places that people think are not going to flood because there’ll be a levy or a wall may actually flood as that groundwater comes right up through the surface of the soil, forming surface ponds. And they could also become difficult to live in if the soil goes all soupy on them, because the water table is high and causes failures in paved surfaces. It could also cause problems if it remobilizes contaminants in the soil, or goes into the pipes. As soon as the pipes get infiltrated by groundwater, there’s not much room

Wenus: The conversation about climate change and sea level rise has in many cases evolved into one about climate justice — addressing the inequities in who’s most impacted by climate change. When it comes to adapting to sea level rise, I’m curious what equity issues you see that need to be considered in waterfront design mitigation? Hill: There are some really key locations around the bay, lower-income communities where there have been lacking services for the last 40, 50 years, whether it’s Hunters Point or whether it’s East Oakland, San Rafael’s canal district, East Palo Alto, Marin City, Richmond. Those communities are already facing displacement from the housing market pressures. And then if our adaptation strategies don’t protect those residential sites, and find a way to transfer the cost to a broader base — if we try to charge the people locally for the adaptation — then that will continue to force people out. So there’s a real kind of climate gentrification or displacement that could happen. All those places I just mentioned are low and will be at risk of early flooding problems and contamination problems.

san francisco public press

Hill: Yeah, we’re going to see paving age faster in places where the water table is high. People have already demonstrated

Wenus: It’s interesting that you bring up contaminants, because the Bay Area as a whole, and San Francisco itself, has quite a bit of contaminated areas. I mean, we have a Superfund site in San Francisco, and Treasure Island, where there’s a huge development planned, also has a history of contaminated areas. Do you think that’s a factor as well that needs to be considered when it comes to planning the future of the city in terms of sea level rise?

Photo courtesy of Kristina Hill

44 page st., suite 504 • san francisco, ca 94102

Wenus: And so we wouldn’t necessarily see that on the waterfront itself, but we might see that in other parts of the city?

that in other parts of the country. We’ll see stronger shaking in an earthquake event where the water table is high. And we could see problems with old contaminants in the soil when that groundwater comes up and intercepts them and starts to remobilize or move them around into pipes, or vapor could start to penetrate the basements of structures. So older buildings with cracks, older pipes with cracks will start to see impacts from a rising groundwater table before anybody sees saltwater on the street.

Hill: Well, I am a big believer in aligning the interests of the environmental community — and biodiversity generally — and the interests of the housing market, because I don’t think we should benefit one and take away the other. So this is actually tricky to do. But it would require us to think about the shoreline of the bay kind of as a honeycomb of different, what the Dutch called polders, or units, where we might manage one unit as habitat, one unit as housing, another for recreation. And we can think about allowing water to rise to different levels in the different sections of that honeycomb along the edge and manage it that way. I think that that’s where we need to go, where some of those honeycomb sections might be floodable housing, whether that’s because you’ve raised the ground, or because you’re floating a whole urban block, as the Dutch proposed to do. Actually, I think floating would be a really good strategy for us, because done properly, it can actually be the best strategy for absorbing the energy of an earthquake.

for either rainwater or human waste, to go down that pipe. So I think that’s been the biggest omission for both Treasure Island and for Mission Rock: They haven’t thought through what the future groundwater levels are going to be. One thing that I see happening is that people around the bay are going to the idea of walls or levees — which is just an earthen version of a wall really — and then pumping, as strategies because those are the most familiar. But I think the Bay Area really has the potential to do something like what the Dutch and Germans do, and do floodable development that lives with higher water. So I really, really hope your listeners will look into what’s happened in Amsterdam’s water district or Hamburg’s HafenCity, the harbor city area, and think about whether that could fit with San Francisco’s development. And then ask for it — because the engineers and the managers are going to go with what’s most familiar. And those things may box us into a trajectory where, 30 years from now, we look more like New Orleans than like Hamburg. And I Love New Orleans, but I don’t want to be living in a bowl under sea level in an under-maintained condition. So I hope that San Francisco will take a different path and look at what other leading world cities are doing.

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