tv [untitled] February 25, 2013 7:30pm-8:00pm PST
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adhere to the department's retention policy. i recall in 1998, or prior to, putting the property g. amepdments on the ballot in 1999, there was a lot of discussion about what sections of the ordinance to amend and it was decided to only limit the amendments to chapter 67 to the sunshine ordinance, itself. so, that is why there is that new section that was read earlier that talks about the department heads maintaining records in a business like manner so as to not supercede section 8.1, of the admin code but to reinforce the notion that the departments needed to keep records that were required to be kept not keep phone messages from, you know, one spouse saying, you know, please pick up the milk at the grocery
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store. but, those things that related to the functioning of the city government needed to be kept in a business-like manner and it appears that did not occur here and i would encourage you to find for mr. wooding in this matter unless you have any questions, thank you. >> questions for either mr. wooding or mr. ginsberg? >> mr. ginsberg, i have questions for you. >> yes, questions for mr. ginsberg. >> thank you, chair, hur. >> mr. ginsberg, what is the department's protocol on looking for back up files and back up data when responding to sunshine requests? and the reason that i ask, also, is it troubles me a bit that the request came in just weeks after the events in question. i think just a couple of weeks
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or a few weeks. so, what is the protocol for when you know that there were e-mails but they were deleted? >> very close with the city attorney's office on all record requests and when request was made to look at our back up data, i think that our custodian of records went did doing that in conjunction with the city attorney and i don't know that it is a routine practice that we routinely check back up data, i think that when we are asked to do so, we do. >> you waited until the task force called it to your attention and asked to you do it? >> i believe that that was the time frame. >> i am not quite sure of the time frame when we ended up working with the department. >> okay. and so at this point in time, does the department have a protocol about asking for you know to search back up files or
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back up tapes when getting a sunshine request? and i mentioned this only because you had made a point saying that you have a full fte person as the custodian of records and that you get many, many requests. >> right. so we actually have about a person who works full time and half of an fte and all of the time that is spent with the department staff going through and preparing and copying the records adds up to a full fte. it is something that we could take a look at it. when the requests come in, we work with the city attorney's office and when there is a specific request to kind of look through the back up data and tapes, you know, we will certainly do that. >> okay. >> so in this particular instance when you got the request, at the time that you responded to miss gong that there were no responsive documents, did you recall that
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you had e-mails pertaining to this the subject matter? >> i did two things. i had no e-mails on my sf gov account or any city account. and i am not each sure if i remember whether i had deleted an e-mail. i was copied on it. i think in my you know i may have told olive that i don't have any e-mails i deleted them on my personal account. which i do repeatedly. in a matter of housekeeping. >> when the it department did not recover and i did not have in the packet the specific e-mails that were recovered were there e-mails from your account? >> not from my personal account there were no e-mails on my stgov, account. >> i see, thank you. >> mr. ginsberg... >> following up on that.
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>> sure. >> you get this e-mail, this request from miss gong, what specifically do you do next? >> so i think i got the request either late friday or first thing monday, i think that the question came in some time around noon on friday and i honestly have not looked at my calendar to know if i was in the office. i asked my sfgovaccount. >> what did you do? >> i either searched for anything involving, i searched in response to the criteria in the specific request. so i don't have it in front of me, it might have been all e-mails dealing with the common wealth club or in communication with mark beul or sarah ballard. there might be other material but i don't remember. >> i am trying to imagine what search you might have conducted here. >> i actually do keep very thorough e-mail records. i have probably about 50 different files and i actually have a lot of e-mails and
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records for a vote of public policy topics and i would have searched all of them and nothing came up. >> how... i am trying to... how are they divided? you would have had a common wealth club folder? >> i may not have had a folder or i may have checked in the in box, i have an in-box and as time allows i try to manage my files where i will move e-mails in conformance with the department's record retention policy into subject matter files, i may have a file for parks, a file for beach, i may have a file for recreation. you know, basically different subject matter, because it is easy to organize and i have 50. >> do you have a folder for mr. buel? >> i do not. >> maybe i should. >> so when you searched these e-mails, do ut have to search
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each folder individually to try to find the responsive documents or can you run one search? >> i think that run one search. you can use a search key and it will come up with all of the e-mails that are in your general nbox or response to a key word but sometimes i will check other files that i might have in my file management system. >> now, are you actually remembering doing these searches or just saying what you likely would have done. >> that is what i likely would have done. >> where else are e-mails kept within your department? >> i mean, we have, probably 600 full time staff, so there are both, we have a combination of centralized and decentralized. i may not be the subject matter experts and we do have a server which is cap able of being searched and i do believe that in response to this it may not
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have been as quickly as he would have liked. we did work with the staff to search the server. >> okay. so let's go back to what you do, because i know that you are not the expert but you are the only subject of this particular language in our jurisdiction. >> so you get an e-mail that you deem to be important. do you or can you categorize it in some way or put it on a server or something that is more centralized so that if it is lost from your e-mail it can be retrieved by others? >> i do believe that on my stgov, account it does back up to a server, i am certain of that but i am not the subject matter expert. but again within my own desktop, i have an inbox, which i tried to keep in relatively manageable order and then i have a number of files based on the topic or subject matter. >> okay. >> so there is no central storage place for important
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e-mails within your department. >> i think that our server does back up e-mails, that come into the department. so i am going to assume that i am not the it expert but i assume that we have a server that has copies of all of the e-mails that come in through the sfgov account. >> so when, i believe it was your assistant, responded to miss gong's e-mail, when staisy white responded to her e-mail saying that neither i or phil have any documents in response to the request below. you personally searched your account? right, correct? >> yes. >> and did you have a conversation with miss white about it? >> i am pretty certain that would i have, because i coordinate with miss white who has access to my e-mail account if i am out of the office i will have her double check or look through files but i am certain that we would have looked through it to make sure that we are being responsive.
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>> any other questions for mr. ginsberg? >> just when you decide something is category four under your retention policy, is there some standard period of time that you retain it? some file before you delete it? >> there is no standard, the period of time that i have until i delete it is the next period of time that i have to manage my inbox if i am not going to retain because it is not categories 1, 2, or 3, and i get the opportunity to manage my inbox is when i will delete non-essential or e-mails that were not consistent with our record retention policy >> now when you delete, you get the e-mail and you hit delete, isn't there a category of deleted items? there is a trash box which
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periodically empties. >> yeah. and what is the policy on how often that is deleted? >> commissioner i don't think that we have a policy on that specific point, i think that at the point in which we delete we delete, and it is possible though that if you go back to our server as was done here, with you will find the records that have been deleted. but again, you are asking me a question that is well beyond my level of technical expertise. >> but when you got the request, did you go to the deleted items to see whether there was any item in that deleted file that had not gone out of the trash box? >> i would have checked all of the files including my deleted inbox. >> i have a question that may
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not be for mr. ginsberg, the question is help me think about whether it is important to get an answer and if so from whom. is it whether there is a standard city-wide policy, with regard to handling open records requests by referring to the back up tapes in the first step. it does seem unreasonable for me, if i am a member of the public and a requestor, when i asked for something to know to ask for it, from back up tapes or some other source. i imagine that i would think that i was asking for this record wherever it was kept. so whether it was kept in a file drawer, it seems to be a city wide policy, not a
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department by department policy. i could restate it for you, and really come back to it. whether the records request should be complied with including reference to back up tapes. >> i don't believe that there is a city wide policy. in my experience, departments search their own records. and don't ask the department of technology to also search back up tapes. which i understand and not the expert and you want to talk to someone at dt is a time consuming process. and quite time consuming if you consider how many public records requests come to the city every day.
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the documents become the records of, or of the technology department. >> that is a complicated for the agency if the deleted records are no longer their own records to search. although it may kick into that other provision that says you have to tell people that there may be something somewhere else that technology folks have on their back up tapes. i am trying to think of what the agency's responsibility is and what standard practice is and what the public ought to expect. >> you know, i think that generally the position, our advice is that the sunshine ordinance does not require the city to search the back up tapes of documents that have been appropriately deleted
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under department's record retention policy. the back up tapes exist for other purposes. >> so that brings us into one other question that we have not talked about is the correct categoryization of documents whether these were the ones that were described as category four were in fact appropriately deleted. i can understand the public being... i just have my office just had one of its, you know, a training on e-mail management. and clearly the a-plus answer was delete everything that you are allowed to delete right away. on the other hand, the public is looking for records can't understandly be surprised that a couple of weeks later, that a few weeks later, records that they are looking for are not there. and i don't know that the law is, or has attempted to go after that.
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the law is... these practices were in their infancy when these rules were written and the technology has changed a great deal about what will be around and how it will be accessible and i think that it is a little hard to know what responsibility the agency has. where there are not common standards and they can determine and make their own determination both of the deletion and of what records to search. >> that is not making it any easier, but it is part of what i am struggling with. >> i apologize. >> do you have anything to say in response to that? >> no.. >> here is sort of what... i think that this is a larger
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issue than the one that we have right now with mr. ginsberg. this is only the question before us right now is whether mr. ginsberg committed a willful violation of the sunshine ordinance. we will later, get to the others who had their issue adjudicated by the sunshine task force. so to me, the question, the main question is did mr. ginsberg actually conduct the search for the records that we have been told he conducted through the submission of rec and parks. because i think that at least in my reading of the records retention policy suggests that the one e-mail that he received would fall into category four, based on my read. now whether, category four is acceptable under the definition
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of the administrative code or the sunshine task force or whether it is illegal is not an issue that i feel that i can adjudicate right now or nor is one that is necessarily before me. because i think that if we find that mr. ginsberg followed that document retention policy, that he appropriately deleted an e-mail that was in category four and that he looked for those records i think that it is hard for us to find a willful violation. i am still curious and want to know whether the document retention policy itself complies with the law, i mean if it doesn't, that is obviously a huge problem and one that parks is going to have to rectify. but for the narrow question i don't know if we need to reach that question. >> i don't know if you are asking me, our office works with the departments on the record retention policies to insure that they comply with the admin code and the requirements of the state law. so, i can say yes, the record
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retention policy complies with the record retention requirements in the state and local law. >> did you hear mr. wo lf's comments? were you here for that? >> yes. >> so, he was suggesting that perhaps administrative code 8.1 defines records in a way that would encompass the documents that can be deleted under category four. >> i think admin code section 8.1, attempts or explains the universe of documents that you are looking at and puts them into different boxes. and as to whether they need to be kept permanently, for some period of years, or they are really only current records just for use on the day, that can be destroyed or thrown out. and then, the department's
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record retention policy, efectuates the requirements by being more specific about which documents fall into which of those boxes. >> any further questions for mr. ginsberg? >> thank you, mr. ginsberg. >> any questions for mr. wooding? >> comments? thoughts from the commissioners? on this agenda item? >> i may have one question for mr. wooding. i think that it is in the records somewhere, but when you eventually got the documents from rec and park, after they went to their it people, did you get all of the same documents that you had gotten from the common wealth club?
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>> (inaudible) >> the answer would be no. i believe to memory, i received two or three of the documents, i did not receive the complete ones. all of the five or six documents. so, i believe that also they were given to me the day before, or the day of when sunshine was going to make their determination so, it was like 11th hour type of thing look at what we found, here they are. >> all right. >> so this, in that context, it was very insulting in that on the very last day, and it is interesting to see mr. buel and mr. ginsberg and sarah ballard
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here tonight as they sent olive gong, and never spoke for themselves. >> she seems to have a nice woman but did not have a clue as to ha was going on and the sunshine task force had to can her twice it was embarrassing for her when she came the first time and asked to go and find the it records and she had not done a thing and she was basically taken to the wood shed and and send back to find something. so i don't, the way that i look at this, rec and park is never treat it as serious issue, and i think that mr. ginsberg with his 50 categories but not one for mark. i find is interesting that he would go through everything, i
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wonder what key word he was using it would be interesting to find out. and honestly i don't believe him. i hope that that answers your question, thank you. >> thank you. >> any other questions for mr. wooding? >> comments in the commissioners? >> i am looking at the one e-mail april 25, 2011, that is on page 235. of the december 5, 2011 sunshine ordinance task force packet.
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for me, the issue comes down to like i said one, did he search the records and are we convinced that he search the records and secondly is this e-mail one that would fit under category four? on the first question, we have testimony from mr. ginsberg and now granted it has been many years since this happened. i did not find his recollection to be ill laousive in light that it was difficult for him to reccolect. i don't think that it was unreasonable for someone after two years to not remember precisely the search that was conducted. with respect to the e-mail, this is not an e-mail that
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asks... he was a cc, on it, it is addressed from mr. beul to mr. dalton. and it certainly expresses an opinion of mr. buel as to the participants and the panel, it does not suggest that there was going to be some official action or that they were asking the panel not to occur. and to me, this does fall into category four as the e-mail that did not need to be responded to. and that it meets the other requirements. and you know, all of that being said, i understand mr. wooding your frustration here. and i can see why you think that it feels like a cover up, because e-mails get deleted
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that are inflammatory and it is possible that it was deleted by the desire to prevent it from being disclosed. but as far as the law requires, and what he is required to maintain it does not appear to fit within a document for which retention was required. >> i don't know. my fellow commissioners. >> i guess the question that i have is i am not sure that issue is really raised. because when you read the sections that they claim were violated, 67.25, which is to satisfy an immediate request.
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there is no doubt that the response that they gave, that they had no e-mails, or they had no documents, was a correct response. and the question is, that commissioners studley was asking about whether there was some practice of going to the it department as being part of it, well there is no way that an immediate request that anybody could contemplate that you were going to go to the it department that is 24 hours. and so, that it strikes me that the response was a correct response that he had no e-mails in his... that he was aware of. and 6726 is where you withhold a document. there is no evidence of any
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withholding of a document or 67.27 is you have to give a justification for why mr. was an exemption. again, i think that there is inapplicable and then the 67.21 c, claiming that it should have advised mr. wooding that he could go to the common wealth club and see about getting documents from them, i don't think that the statute requires that and it seems to me that it was self-evident to anyone knowing that the recipient on the other side who also would have copies to the extent that they had them. but, whether or not the retention policy was a proper retention policy, i don't think is before us on this particular complaint.
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>> commissioner renne is right to turn to the four alleged violations. what i have been trying to figure out is what an agency has responsibility is for the actions of the agency. and with his responsibility to respond timely to the request for his own documents if there were any that were responsive or was it to see that the agency got the request during an answer on that day or a request for an extension? and that is not specific to him, this will come up over and over again, i think as we deal with agencies where the, or where there are complaints under 67.25. and under 67.21 c, is there an agency
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