don't. and on the second item, mr. buell reports that the common wealth club has other than golden gate park that there are no topics that the club has hosted and i would like to remind him and point out to you that perhaps a case for palestine could be considered a little bit more controversial than golden gate park under siege and this was a title within the time frame topic. thank you very much. >> katherine howard.

yeah the common wealth club has had gay rights that is one sided i have not seen any right wing people listed. i think that it stands for free speech and exploring a variety of issues and ha is not relevant to your decision but it speaks to the fact that we are trying to have a broader public learn about our issues. i want to repeat that miss ballard did write as an official as the department she wrote in response to a phone call she mentions in the e-mail a phone call. she wrote a one page letter and signed it sarah ballard, director of public affairs, phone number and e-mail address and etc.. so this is definitely an official communication that she spent a great deal of time on and should have been provided. >> the only reason that we had a suspicion that these e-mails might exist is because the

title and panel make-up suddenly out of the blue, changed, it was fine with the common wealth club for months and then all of a sudden, we get a call that it is changing >> if we had not been provided by a wonderful free speech public spirited citizen, with the e-mails we would never have known they existed. we would have done a sunshine request and we would have been told that they were not there. what are you going to do to help people who make requests hoping to find out something and they don't or they are not sure that the documents exist? what are you going to do if there is not a whistle blower who provides the documents? how are you going to provide some kind of accountability for our city departments if you don't do something about this? and i can tell you that there was someone in here earlier susan dumont who worked on the boat house concession and however you may feel about

that, what got them information was a lawsuit where the court required that the department provide documents that showed the department had been doing some things that were not particularly great in trying to influence the out come of that rental lease. so, please, think about the fact that there are those of us out here who are trying to find out what our department is doing, and we don't often have the smoking gun we just have an instinct that something is wrong, how are we going to find out? if the people can come back and say that was a category four, is that like hurricanes or something in how are we going to do that if they can do that and the documents there, and we know that it is there and they say that they don't have it and wrote it as an official department, what are we going to do us? help us to get the accountability and that is all that we are asking for. thank you. >> david pill pal again, two

preliminary matters first to judy your comment to palestine as a jewish person who helped to separate golden gate park and i am not sure what that means but i will think about. and the comment about the still lake this commission agreed to a settlement agreement for a fine with regard to the communications just to remind you and the public. as to the instant matter, i'm a bit torn, i still think that there is a violation here. i'm not sure if it is a violation of the sections that were referenced. or i am not sure that it is a willful violation of the three named individuals in this case. i think that i agree very strongly with the commissioner studley's suggestion that we catalog these for further discussion between the commission and the task force and the city attorney's office and the various departments if

we are going to require all e-mails and all paper records to be retained forever, that seems on its face to be unworkable. if we are going to allow some people to exercise discretion about what to keep and what, not, we need to have strong standards and meaningful mechanisms and i am not sure if the language of our laws now cover the record retention policies in the ways that they could. i think that as computing takes over more of how records are kept, whether something is on a server, in the cloud, hosted by somebody else, or elsewhere? these are all very difficult questions and i don't have all of those answers right now. i don't know that any of us do. but i think that these are things to be thinking about. i think at a very practical

level where there is a question about a record being kept or discarded, if it is about a public issue for which there has been some controversy and likelihood of more discussion, i think that a reasonable person would say, i should keep that for the moment at least for the two-year period. so, if you go to a common sense interpretation i think that you may get to that sort of a conclusion, but it really depends on where you go with this and whether you want to seek more information from the people here or others, i think that this has teased out a lot of complicated policy issues. >> so. thank you. >> sorry. >> that was not yours. >> if you have more to say? >> we are all looking forward to a break so i am good with that. thank you. >> questions? for the respondent or the complainant? >> i have some questions, particularly for miss ballard.

miss ballard i am looking at figure one which is the e-mail that you sent to roth roly on april 20th. why didn't you retain that document? >> i don't retain sent e-mails. >> if you had sent the government contract, would you have, that would just disappear into the ether after it had gone out if yours was the only copy? >> if i had a copy that was sent i would save that on the server or on my desktop. but, as a matter of practice, no i do not saved sent >> regardless of the importance of the e-mail you send it and there is one recipient that e-mail is going to disappear in two weeks? >> that i think it just... i

don't retain sent documents i don't know, i don't think that they are retained anywhere beyond that. >> do you know how long your sent e-mails are retained? >> i don't believe that it is. >> correct. >> so it sends and it is gone. >> so you can't go to your sent files to see oh, when did i send this e-mail to this person? >> correct. >> okay. and i saw that you... >> any other questions for miss ballard? >> questions from the commissioners about a respondent or a complainant? >> i have a question for mr. buell.

>> thank you. >> i realize that i just wasn't clear when you said that you looked for responsive documents when you got that request, but didn't find it, but you also said that you don't ordinary delete them? >> i don't ordinary delete, but i delete a lot of them. i thought that i had kept track of it but the more that i think about this particularly with the help of mr. wooding that there was only one that i had e-mails with the common wealth club, the rest of it became telephone calls. so when i looked under common wealth club or agreeing dalton i did not see anything, i must have deleted it. but it was not as significant to me at the time to tell you the truth. it seemed outside of any issues that was before the commission

and i know mr. dalton well, and so it was kind of a, or just a let me tell you what i am thinking and why. i should correct, also, i said that you had a communication with the city attorney it was actually from olive gong that had sightings and city attorney stuff in it and i think that it correct and i am not represented by council. >> do you and i know this is some time ago. but do you recall whether you would have looked in both your received and your sent locations for correspondence? >> you know, at that time, that was probably above my pay grade. i was operating on a blackberry at the time and i think that it was just one category that i knew to plug in to search for anything in e-mail and it would show up. i think both as sent and received. but i can't say that for as a fact. i have learned a lot more about

it since. >> not advertising for blackberry. >> no. >> i'm on the iphone. >> okay. thank you. >> i actually have or wanted to bring mr. wo lf up here if you would not mind? >> bruce wolf. >> so mr. wolf, i hear your comments, and i think that i have, certainly my view of this is that in order to find a willful violation, i think that i am going to have to find that a respond ent at a minimum did not retain a document that they were required to maintain under their policy because i am not going to... whether the policy

is right or wrong is a discussion that we should have but not one that is relevant here, because in my mind at least, an employee who follows their own document retention policy cannot be found to have willfully violated the sunshine ordinance when this is about document retention. you may disagree with that, but what i am hear to ask you is if you appear to have studied this retention policy to some degree, what category of, if you don't think this is a category four document, the ballard document, what category do you think that it would fall under? >> it would not refer to the retention policy. >> i understand your view. >> i only referred to section 8 of the admin code. and in there. >> mr. wolf that is not my question. >> i understand. but there are categories that are part of the admin code that are in the retention policy and current records and there are storage records and permanent

records. these records are current records. and so, if you refer to the section on section eight, with regards to current records, which they try to include in their retention policy, okay? but it is not correct. so if you are saying that there is at no fault because their retention policy was wrong, but that was what they were given. >> mr. wolf, give me an opportunity to help me understand something, so if you don't want to answer my questions. >> well, i can certainly answer your question. the problem is that i don't see it being contained in as a category four? >> what category do you think that it is? >> i don't have it in front of me, yeah, i would say that it is in category two. >> why? >> because a current record that must be retained. >> so... >> i don't agree that in

category four those list those lists that they have in there, halfway down, where it talks starts to get into the sunshine ordinance, it says specific examples including calendars telephone message slips, calendars? it can't be calendars, calendar ss prop g.. it can't be be calendars. and that would be, that is like state law. you can't do that. and you know, notes, notes are considered, unless it is work product, and there are no notes kind of stuff like that, how lawyers work, there is a lot of work product that they use before the actual official documents come out. that is some what just a little treated differently. but we are not talking about that here. >> now, i understand your view. >> thank you. >> okay. you're welcome. >> so, i understand what commissioner renne was saying

before that the specific violations that were alleged do not necessarily reach the issue of whether the document should or should not have been retained. >> however, we have a some what unique situation here where we know the document that was not retired does exist. and it does strike me as some what hollow to not evaluate whether or not it should or should not have been retained or was not produced because a document that should have been retained is not. that is what i am struggling with on this particular complaint. it and particularly if miss ballard does not keep anything that she sends out, there has got, there must be there could be instances where she is not following her document policy, and that is also quite

troubling for me. so, i really welcome the views of my commissioners on fellow commissioners on how that plays into whether there was a willful violation. >> i think for me it boils down to 67.21 c. about whether any of these individuals should have or the department had an obligation to inform the requestor that it was that there were e-mails but they were deleted and that they need to or that it is not within their custody any more. and that is needs to be referred to the department of technology. so that is still where it boils down to for me. >> 67.21. c. >> for not assisting, i think that is where that piece might fall is not for assisting the

requestor. >> i am totally confused. i have attempted to dress my confusion by making a chart this is not getting any better, because the four headings that i am looking at i watched... it is easier. failure to respond is one of the specific claims. but, all three of the people responded. miss gong, miss ballard and mr. buell all responded and miss gong responded for the department. >> i do think that miss gong's response was lated. >> yeah. >> and thing that she knew the deadline but she responded late because she was waiting for

others that were not on the list. >> late is the eastist of the questions but i agree with you. >> then there is the or was there an obligation to keep in the first place? i too was surprised that she keeps nothing and i'm would have to look at categories one through three, but, i think that it might be hard to say as au said, hard to satisfy the policy about other materials unless that statement is over broadened and there are other ways that the thing is that are official records are kept properly. then there is the separate question of what items if erased go into it? mr. buell's was on a private e-mail and even if while it exists it is a city record. and i don't know i do not know

the law on that. but, even if it he were, when he deletes it, it isn't, or if he can't find it, that, there is no referal for that, because, it would not default to a city it system. miss ballard's might even if she does not keep hers they go someplace else that is just a question mark. and there was some suggestions earlier about the memory. and this situation is confounded by the fact that it was so close in time to the exchange that we can imagine ourselves saying, but, i would have remembered why didn't they say so and go and look for them or say that there was a record but i can't find it. which might have been satisfying to at least know that there was an acknowledgment that there was such a thing. i am worried about trying to create a standard because the sunshine laws are not about who

you remember, documents or information, or exchanges they are about production of records. and it would be so excruciating to draw the line between records that you could or should remember, and the records that were so long ago that or so part of a box that came through your office. that i hesitate to do anything about memory although, in this case, it is, i can understand that it is frustrating as just a matter of people saying it was not that long ago, do you remember writing anything? or getting anything? >> and this goes to the comment that several people have made between these type specific of allegations where we are a, where we are determining violations that are or need to be drawn precisely, and a feeling of desire to support transparency. and i say that as someone whose

organization often files public records act requests, against state, federal, not so much city, but state and federal entity and wants to get what we have asked for, i am not a stranger to this. but i don't know how to write better rules that would make a city employee, i will use miss gong because i have not met her here, to go behind the city policy the department's policy about characterization of records or categorization of records and expect someone in that kind of a role to rethink or you know, redetermine what is appropriate or being held at risk for failing to up hold the rest of her colleagues to do something other than what is forward as the department's record retention policy. >> so that helps not at all, but it shares the nature of my

multivariable confusion. >> well, on the point of whether to search for back up files, i think that first of all, that has got to go on the list of what to do, to the extent that that is the problem that is going to plague everyone and we need to figure out what to do. >> right. >> when or how or why. >> but, i don't think that we can today, find that failure to search back up files was a willful violation, if the city attorney said that you don't have to do that. >> agree and miss ballard says that now it is in the custody of the department but at the time if it was not in the custody of the department i can't see a willful violation for failing to search the back up tapes >> to me the back up tapes is for today, is a different issue, at least.

>> i don't know if mr. gibner, you are the right one to ask this question to, on this issue of the failure to retain a document that one should have retained was the violation of the ordinance or is the violation of 67.21 c, do you have a viewpoint on that? >> that is not an issue that i have considered before. the ordinance does require as a think a few people including mr. wolf have said, the ordinance does require that the department heads, department heads at least, retain records in a professional manner, some, i'm misquoting it. which we have always interpreted to mean and advised to mean, consistent with your records retention policy. so, there is something in the ordinance that essentially requires the department heads

at least, to act in a manner consistent with their record of retention policy, that probably does not help you in this particular matter since you are not looking at a department head >> p mr. gibner are you talking about section 67.297? one of the speakers during public comment had pointed to that, about the department heads shall maintain and preserve in a professional business like manner all document and correspondence, including letters, e-mails. >> and that is right and we have advise and always interpreted that to mean consistent with the records retention policy. >> okay. >> not every on-line e-mail that crosses your desk must be kept in a file. >> okay. >> other comments?

questions from the commissioners? >> well, like the failure to retain a document when should have retained question, what about is there a good faith search and failure to find a document that might have been there? standard? >> so, i... >> initiating a blackberry problem. >> what do you mean? sorry i didn't follow. >> do you mean... >> mr. buell does not think that he deleted it, he says that he looked for it. >> he says that he lookd for it and he did not find it. >> there is an exchange that he does not dispute took place that was provided in another way is a good faith search. but it is standard.

>> i would think so. yeah. >> and the standard as we and the city departments applied it, there is also that there is a rule of reason, here, that the department have to make reasonable effort to find a document, but if you are receive a request, say for every e-mail from the last 20 years on the x, topic if it is unreasonably difficult to find, you should work with the requestor for figure out what the more narrow search could be. >> i think that general rule may also pertain to the back up tape question that you are flagging for a future day, the amount of resources and the effort that you are suggesting, would take. >> right. >> i think that we are not suggesting a policy out come.

we are just saying that people ought to understand what they are required to do and what they are going to get, or where in between it gets decided whether to go that next step. >> i cannot find in here a requirement for a non-department head to maintain the records. >> and that may be because as mr. pilpal said the purpose of the sunshine ordinance when it was on the ballot was not to deal with the records retention issue but disclosure of documents that have been retained. we have a separate chapter of the admin code that deals with record retentions and i think that probably answers the

question. >> in light of that, the way that i preliminary would come out was that there was a violation with respect to the failure to provide the records by the end of the next business day, by miss gong. she had a response, from miss buell, she claims to have gotten a response from mr. buell, miss ballard. sorry there are a lot of people i'm learning about today. and there was a response from miss mcauthor reflecting that mr. buell had done the search and a response from mr. ginsberg as well. but held on to the or did not give the response in a timely fashion when she had them on june 6th. so, there i would find that there was a willful violation of 67.25. i don't think although i am

some what surprised i must say that there is not a requirement and frankly, miss ballard, i highly recommend that you create some mechanism whereby you maintain important documents that are sent the notion that they are just deleted is not very... not earning a lot of sympathy from me on that. but i don't know that based on the decision that was made by the sunshine ordinance task force, i don't think that is before us. although, i think that it is a problem. so i would preliminarily find that there was no violation of 67.26, or 67.21 c. >> for all of the other reasons that we discussed. earlier. >> just to clarify, because this is a hearing under chapter two of the sunshine, you don't have to find a willful violation, this chapter just asks was there a