records of the commission that are pertinent to an investigation are confidential under charter section c3-699.13. however, miss herrick identified three pages' of emails that don't fall into either of those categories, in her opinion. and are therefore subject to disclosure. this is obviously a complicated analysis looking at state law, the charter, and the sunshine ordinance. in this case i believe the sunshine ordinance is trumped by these two charter provisions that make certain records confidential and to the extent what that they are confidential, they are confidential under evidence code second, 1040 and not subject to disclosure. again to the extent that these three pages don't fall into those categories, i believe they are subject to disclosure

in a redacted fashion. >> that is not what the sotf ruled >> mr. shaw, please. you had your opportunity to speak. mr. pilpel you may continue. mr. shaw, please give mr. pilpel a chance to speak. thank you. >> so to conclude, i believe that those three pages should be provided. neither memo discusses what the staff's rationale for non-disclosure at the time of the original request was. that may be something that is worth discussing. so i think it goes to the question of whether there was a willful violation or a different sort of matter? i believe mr. menat shaw is free to make a request at any time, particularly now that he believes that the matter is concluded and to the extent that there are records available post a concluded investigation. there may be additional records that are now subject to

disclosure. it really turns on what was available at the time a request was made? so just my final point, i am particularly troubled by the fact that apparently the commission has received either all 24 pages or at least the three pages and is able to review and consider those, which the public obviously hasn't seen, because that is the subject of the matter before us. i don't find in the charter or in the sunshine ordinance a provision that allows incamera review of documents this way and i'm still struggling to work through that issue, but i will deal with that on my own and let my comments stand unless you have further questions. thank you. >> thoughts from the commissioners on this item? >> can i ask mr. givner to address that point about the

incamera review? >> sure. documents that are distributed to a commission for their review, that are not otherwise privileged or protected by law must be made public. so the staff's memos to you on public matters, if they distribute them to you, they must be made public and attached to the agenda packet. confidential documents protected by a privilege can be distributed to you and are not part of the public file and one example of that is if you are considering legislation that raises potential legal issues that could lead to a legal challenge we'll sometimes give you a confidential memo that is protected by attorney-client privilege. you may review that before the meeting. you don't make that public. in this case, the documents that you were -- that were

distributed to you, the city has made an initial determination through the executive director that those are confidential. the commission tonight may decide those documents are not confidential and then they will be disclosed. but at this point, it was proper for the san jose city attorney to provide you those documents in confidence. >> okay. thank you. >> any other comments from the commissioners? >> well, i guess i'm just not sure -- it's not clear to me that the text of the emails meets the definition of "confidential information." that is what i'm struggling with a little bit here, but maybe i need to be directed in

a more analytical fashion. >> my view of this matter is that as redacted, i think miss herrick is correct that the information can be publicly disclosed. now i'm not sure how enlightening or satisfying the redacted information -- the redacted version will be. it appears that the information that was redacted relates to communications between the commission and the controller's office, which we previously determined were covered by this privilege as part of the investigative file. so i don't think miss herrick was making any additional determinations beyond what she had initially recommended, and that we had earlierly decided on october 22nd.

i think she simply is enforcing that view and decision by redacting the portions that were by our prior determination. so that is my understanding of what happened here. >> okay. and that it was privileged as part of the ethics commission investigation or as part of the controller's investigation? >> well, i think we -- mr. givner, correct me if i'm wrong, i think we determined that both are. i think these emails may have been as part of our file, the commission's file. but it relates to both. >> okay. thank you. >> >> commissioner hayon? >> my question is in terms of

the opinion that has been rentered by miss herrick, are we bound by that dismissing or is it simply advisory and we can decide what we think? >> we are not bound by her memo. we made our decisions at the october 22nd meeting. and as part of that, we asked her to review some additional documents, and she has now come back with a recommendation stating that she at least believes that. >> i read and understand that. >> so i don't think we're bound by this memo that she provided today or that is part of today's packet. >> but her opinion certainly should help us decide and vote on whether these three emails are public or not.

is that right? >> right. >> and what i hear chair hur saying is that this memo is consistent with the actions we took -- the discussion we had at the last meeting about this. and we would be applying that same standard; that we think that matters -- communications between the comptroller's office and ethics commission staff cannot be revealed, but that communications would be our staff. the fact of such communications and any part not restricted as a communication between ethics and comptroller can be revealed. so she is following on that interpretation. >> this is what you discussed

at the october meeting? >> this was discussed at the october meeting. >> yes. >> did i say it incorrectly? >> i think you said it a little more narrowly than we decided. >> okay. >> to the extent that a communication with the controller's office relates to an investigation that is covered. so internal communications, i don't really want to make -- it's probably more accurate to rely on what we decided and said at the meeting, but with respect to internal communications what miss herrick appears to be saying here, if you redact the confidential portions, i.e., the portions that relate to the investigation, the fact of the internal communication could be

disclosable. again, i think i shared my view we should follow miss herrick's recommendation to produce the redacted document. with respect to whether this is a willful violation of the sunshine ordinance, i do not think it is. and the reason is as follows: this was part of the file. it's been heavily redacted as a result of containing confidential information that is protected. and i think it was right to withhold the document. mr. givner, what is our ability and/or our requirements with respect to redacting and producing documents? >> point of order. >> that would be otherwise-- >> through the chair, point of order, i could have sworn that the agenda for tonight said you would arrive at making one

decision before you began evaluating whether it's willful. so before reaching your first step appears ethically wrong. >> mr. met shaw, please sit down. mr. givner. >> so your question? >> are we obligated to produce confidential documents in redacted form? if they contain confidential information should they be withheld? >> i think miss herrick's approach and suggestion was correct if there is a document that contains a little bit of confidential information that can be meaningfully redacted and a chunk of information is public, to produce the public

portion. just to make sure that all the commissioners are on the same page, i believe by -- in reaching the conclusion that the documents are public, non-redacted portions of the document are public, you are concluding both that these documents -- these redacted records are not records of an ethics commission's investigation or the controller's investigation and also they are not covered by the official information privilege. i think that is miss herrick's recommendation to you. >> that we find that they are not part of -- in reacted form part of the official exemption >> could you just -- i got the first part that the redacted document are not records of a ethics commission's investigation and controller's investigation. >> i believe miss herrick

spoke about that in her first hemo, the official information privilege is a privilege in state law that protects information gathered in confidence with an expectation of confidentiality from the informant. and involves a level of balancing by the government entity looking at the record, whether the public interest favors disclosure or non-disclosure. >> interesting. a little background music for your viewing pleasure. >> i have arranged for that for all of my legal advice to be scored. [ laughter ] >> choreography comes next.

>> chair hur you have answer d my question on the analysis. i just need to be reminded of the analysis that had been rendered at the october meeting. [tkpwhra*-ufrpblgt/] what . >> thank you >> what would be the appropriate motion -- do we need to take an action or is that the sanfords city attorney's determination? >> my understanding is that we would have to vote to release. >> >> what would be the approximate motion to accomplish that? >> i think the motion would be to release the document as redacted by miss herrick.

before we do that, this was calendared as a single agenda item. i do take mr. menat shaw's point that they are separately enumerated within item no. 4. but i do think we can take them together. is that right, mr. givner? >> yes. >> okay. although it is sort of difficult to not take them in order. let's make the motion on whether or not to release the three pages as redacted by miss

herrick. is there such a motion? >> so moved. to release the documents as redacted by miss herrick. >> second. >> all in favor? >> aye. >> opposed? hearing none, that motion passes and the record should be produced as redacted. as a result of having produced -- agreed to produces the record as redacted, i think we should address the issue of whether the failure to release these documents was a willful violation of the sunshine ordinance. i think i have given my view that in light of the effort we made to review all of these documents, the discussion we had and arguments we heard with respect to this file and these records, that i certainly don't

see willfulness here myself. i will open it up to my fellow commissioners to share whatever views that they have on the matter and we'll take public comment and go from there. >> i agree, i don't find a willful violation given the amount of time we had to spend in analyzing the issue ourselves. it was borderline, i think. >> i would be interested in hearing public comment first. >> public comment on this item. >> commissioner hur, i know you just want me to go away quietly. >> mr. met shaw, if i wanted you to go away quietly, i'm sure i wouldn't have given you the opportunities to speak and present papers and review and delay, so we could fully hear your argument and understand them. i hope at a minimum, you feel that i have given you an opportunity. >> can the ethics commission

that speaks the english language tell me how miriam webster's definition of "willful" has not happened? this case has dragged on for two years? before it got her it was willful foot-dragging while winding its way through sotf. as far as i'm concerned you are foot-dragging in agendizing my complaint almost a year after it was referred from sotf. that you are foot-dragging was also willful. you could have scheduled a special meeting to move things along. it's willful that mr. st. croix and his staff, his deputy director, the entire ethics commission, i mean ethics

department staff, more than likely had access to that file. they knew what was in that file. withholding it under misguided interpretation of 1040, and c3-699.13, all of that was willful. i think miss herrick made the recommendation that the material should be released, knowing that it was willfully withheld. that it existed in the file all along. and that had you, as commissioners, done an incamera review of the entire file enstead of just an incamera review of 20 pages after -- three months after you made your decision on october 22nd.

you could have looked at that file incamera before october 22nd. and you may have none then that it was willfully withheld then and maybe you would have reached a different outcome when you considered my case. instead, mr. hur prejudiced the october 22nd hearing. which with all due respect, sir was willful prejudice. >> dr. derrick kerr again. another issue that comes up with these complaints and investigations is whether the ethics commission or the regulatory agency does anything? does any investigation? one way to find out is to

request documents. the documents are not confidential. it's the information that is confidential. for example, if you request information about an fbi investigation, they might send you documents that are completely black with nothing except black on it. but you know that there is a document; that something was done. so if we ask for something, a document or some information, you could still give the public a document and hold onto the information. that way we know that something was done on paper, but that we can't have the information. thank you. >> commissioners, ray hart, director of san francisco open government. i think it's kind of circular reasoning or some sort -- i

don't know how to describe it -- to say that because it took us two years to get to this point, it obviously wasn't willful because it was complicated. the law says you have a certain period of time to produce documents or explain why you are withholding them. period. it doesn't say oh, well you got a couple of years to sort of toss it around and decide whether you are going to hear it or not and decide when you are going to hear and t and whenever. that is why i said it's a sipian task ppushing that rock up a hill and know your rights under the sunshine ordinance to actually follow them and it's self-serving to say seas to complicated in our mind it took us two years to reach this point, that you can't say it was willful. and the reason i saw that i requests in customer service in the private sector for a number of years and if a customer came

and had a complaint, you could do one of two things. you could simply ignore them or say let's actually have a conversation and talk. let's see if question figure out what the problem is, and come to a resolution that both of us can live with. and what i had experienced not only from the ethics commission from a lot of city boards and commissions is their unwillfulness to deal in good faith. in other words, instead of sitting down with you and saying okay what is it that you want and giving you what they are supposed to give you, giving you what they are allowed to redact, but still are required to give you, and then saying here is what we have withheld and here is the law under which we withheld it. nobody does that. they simply say no. and if you force them to look into it, they will drag it on and drag it on and drag it on

and drag it on, i guess hoping that you will get hit by a bus. there is never a good-faith effort to say look, you have said these documents are disclosable. i am sitting with you with all the documents, i'm giving all the documents that are disclosable and i'm giving you some additional documents, which are discloseable, but we have redacted some things, and i have given you a list of what we withheld and exactly under what law we have withheld them. that is the way public records requests are supposed to be handled. not you figure out what it is that we with withheld and why we withheld it and come here to present a casetor two years to finally get something and then we'll say, well we weren't willfully withholding it.

david pilpel again. i think we're working through this issue and i appreciate your time. we have heard at least a couple of times from mr. menat shaw and we have not heard from mr. st. croix and as i suggested earlier and under the regulations that were adopted two months ago and took effect, if this matter were coming brand new know we would have had a report and recommendation from the staff and a chance for the complainant and respendent to speak. we have heard from the complainant and we have not heard from the respondent and it would help me to hear from mr. so st. croix the rationale for disclosure.

so i would encourage you to ask him that. >> other questions from the commissioners? commissioner studley, you wanted to wait until there was public comment. is there anything else that you want to share is in ? >> no, i agree with you and commissioner liu. i don't find this to be willful. since the understanding -- that this was part of the investigative file and the degree to which it could have well been made with good faith

and that we have teased apart this particular category of communication within the ethics staff as being the one place where there might be documents that were appropriately disclosed suggests to me that was a reasonable basis. >> would any of the commissioners like to hear from mr. st.croix on this? >> yes. &i think that would be helpful. >> mr. st. croix, can you come to the podium, please? >> in terms of the three pages of documents in question once redacted they are rendered meaningless and as such, provide no usable public

information. so just in defense of that, it's not withholding any information that is usable by the complainant or any member of the public. >> in that regard i found dr. kerr's comment informative. my organization files for requests and record requests with the state and think there is a difference between a document, however frustratingly redacted and no document at all. with that said, i can understand that that determination was made in good faith by the commission in applying what they understood to be the standard. >> mr. givner? >> just jumping in and

following on what i said earlier. mr. st. croix is right. and in that the city, when we such a sunshine complaint, the department is not required to produce page after page of entire redacted information. but if there is substantive information in the document, and can be revealed with minor -- released with minor redactions, that is when we would suggest redacting. so there is a fair amount of judgment in that. and that goes to commissioner studley's point. >> we are not -- are we prohibited from releasing a document with no substance? >> i think when this document is produced, in my view it would fall on the end of the redactions that i would categorize as