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 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 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? >> (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 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 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. 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 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 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. 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 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. >> 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 responsibility to have referred someone to it? not the common wealth club, i don't think that is what the rules contemplate at all. >> right. >> the person that i mailed the letter to may have the letter that i sent and i may have a

copy of it. those are true but i don't think that the law requires them to do it. if you go to rec and park and they ask you for something that is really at the labor department or the mayor's office that they will say we don't have that but we should go to the other city office but on those two, there is at least potentially, an agency responsibility and under as the head of the agency, have that responsibility and what would it take even if there were a failure to respond that day what would make it willful? since he had appointed a staff, responded himself in a timely way? as we do these, i just think that we are going to have a series of these kinds of questions. >> commissioners? studley pointed exactly the point that is troubling me because i think that mr. ginsberg himself did conduct the search and there were no responsive documents so i do understand that technically,

the answer was correct and he responded in the way that the ordinance contemplates but at the same time, what troubles me about this particular instance is that the request came in only a few weeks after the event occurred and you know, there was, or there may have been and i understand it is now too years and so, mr. ginsberg does not recall specifically, but there may have been a recollection at the time, that he had deleted an e-mail and why he didn't immediately say, you know, i deleted the e-mail and so there may have been a back up tape available to go and look for at the department of technology, that is the aspect that troubles me. but now having heard from mr. gibner that there is no city-wide policy on directing agencies to the department of technology for back up information in response to

sunshine requests, i feel like there can't really be a finding of willful violation because there was and there is no protocol on back up tapes and that is the piece that i am struggling with here. maybe i... there is no city-wide policy on back up tapes. so, our advice to the departments across city has been when you receive a sunshine request or a public records request you are not required to go and search back up tape which as commissioners studley said is not even in your department. i guess that i just want to clarify that. >> okay. >> thank you. >> any other comments on the commissioners?

>> anybody like to make a motion regarding this agenda item? >> i would move that we find that mr. ginsberg did not willfully violate the sections of the sunshine ordinance sections that were referred to, 67.25, 67.26, 67.27, or 67.21. >> yes. >> (inaudible).

>> all right i am looking at the memo from the staff and it says that the task board made a motion finding that mark beul and phil ginsberg and ballard and gong violated those sections of the sunshine ordinance. >> i was looking at the task forces. findings. which also track that. which also track that? >> i was looking at the task force finding which appears not to be pagenated of august 8,

sighting a decision issued july 26, 2011. >> is there a second to the motion? >> second. >> all in favor? >> aye. >> opposed? >> hear none, the motion passes. >> before we move on to the next item, i'm guessing that our staff is already doing this, but just for the record, it would be helpful and i know that i am not catching all of them, if we could try to identify the issues that we are coming upon, that either go to interpretation of the rules, or agency practice, that we might want to inform so that we as we build a body of experience, we could go back and see where clarification is needed and where the city attorney and we want to ask the city attorney to look at certain issues and i

don't want to walk away from the individual matters and leave our possible either policy recommendations or a law change or guidance on how to be more effective or consistent about doing this. there are many things that won't be amenable to our suggestions, but i think that if we could just follow those through, we may find things where we can improve the underlying situation as we go through the specific cases. does that seem like it would be worth while? >> sure. >> i see the staff nodding so i am satisfied. >> okay. do any commissioners need a break? >> no? >> i think that we should go

through the other individuals on that, while it is fresh in our minds. >> next, item on the agenda is... under 4 a, this is a under chapter two of our new regulations which provide the burden on the respondent. so i understand that miss ballard and mr. buel and miss gong are here? miss gong is not here? >> who is going to speak? >> okay, mr. buell, please? >> five minutes.

>> mr. gooding is satisfied. >> i will use much less, thank you very much. >> let me say, first, that i think that you have a communication from the city attorney which pleads my innocence in this case. but i want to put a little background, i was asked to look at my e-mails, and i did look and i responded, i think within 12 hours of being asked but i could not find the e-mails i was looking for. having said that, i wanted to find them. and i believe that they are part of the record. but to set the record straight, when i heard about this session of the common wealth club i have spoken with the club on a number of occasions, i hold them in high esteem and i saw the title of the event that was being planned, and i know that the panelist that are involved in this that put it forward. i have the utmost respect,

particularly for katherine howard she is passionate about the golden gate park and i would not diminish her credibility in the least but i felt, and i stated that this was a one-sided, golden gate park under siege. it is under siege to some people and not to the majority but the people who feel passionate about the different issues in the park and i respect that fact. but i said that i thought that given the history of the common wealth club that they had a responsibility, one to have an unbiased title and two to have at least one representative from the department to be able to speak to the issues and so, having done that, they came back to me, and i was not involved with the staff, there was no conspiracy with staff on this, i take full responsibility. i got into the communications

with them. and they ultimately said that we will change the title and i forget, it was a neutral title in my opinion and they said that they would not accept anybody, they would only accept me to speak on that side. so reluctantly i said i will do it. and so, we went forward under those circumstances. so, i think that it is really... there is an issue, and i have changed my own personal habits to not deleting anything any more on any subject. i got to help my wife because she finds it all and i am only kidding. it is just a fact that you wonder what, i would have kept anything that related to commission issues, this was not a commission issue, this was a issue among people that i had done business with before and i wanted to make my case. so i simply say that i think that in the big picture there is no conspiracy here and i wish that i had kept them but mr. wooding found them and provided them to you and i am

happy that he did and i stick by them and i think that they accurately represent what i felt then and what i feel now, thank you very much. >> commissioner sarah ballard for the recreation and parks department. i will just add to that olive gong's role is to receive the request and deseminate them to the staffers and ask the question do they have any information. i searched my records not dissimilar to my boss the general manager, i keep essentially as my inbox to-do list and anything that complies with the record retention policy is saved either in an e-mail folder and most often also printed out and saved in a hard copy file. and so, i searched both my e-mail folders and hard copy

files and none of these documents were, i did not still have any of these documents, at the time of the request. which was a believe about 6 weeks or eight weeks after the e-mail exchanges took place. >> and i am happy to answer any other questions that you may have, thank you. >> mr. wooding? >> you have five minutes. >> (inaudible) you look at and you bifercate your own issues. i do think that this was a group effort it is clear to me.

the way that i got the documents they were clandestined here this is for you to show you how screwed over you guys were. i think that where i am coming from is with this current board, whatever i would be saying tonight good or bad i am going to lose. so it does not seem like whether something is deleted, or whether something is no longer available, really matters. i think that what really happens here is sunshine suffers, and the public suffers. and the public loses confidence in government, especially when ethics who is supposed to maintain ethics and was voted to help citizens now represents the city family more than they do the public. so, with that, i will leave you with as someone who is new

here, i have very little confidence of any fairness, so thank you. >> i have a question for mr. wooding, please? >> mr. wooding, i have a question for you, if you don't mind? >> you made a comment just now about the documents being provided to you and what you called a clandes tiened manner, were they provided to you by an employee of the department of rec and parks? >> i won't answer, since i write stories, i have to protect my own sources. >> so you think that they were not provided to you through the routine... let me start another way and maybe the trial lawyers can phrase this better. >> you made a request for documents that was referred to an employee miss gong who has the responsibility for that area and it was she that told you that there were no

responsive documents. correct. >> when you did get documents are you saying that they did not come from miss gong? >> that is right. >> i had them before i made the request. >> i am not talking about from the common wealth club. the document and the back up files. maybe i am misunderstanding the process. they went to the back up files and will go back and see here if we have any of the documents that were deleted i thought that you did get them from the department. >> i did. >> and i think that my question is did you get them officially from miss gong or someone else with a record's management responsibility? >> miss gong? >> miss gong, 141 days, after my request. >> okay. >> i think that when he was referring to the clandes tiened

that was from the source that originally provided the documents. >> i can't mention who. >> i thought that you... i misunderstood. i thought that you were saying that you never got the documents formally. and officially. >> no, i got documents. i understand that it was belated and that you were... >> mr. buell and miss ballard. three minutes rebuttal. >> i failed to mention which i think is important to not sound so presum sus that i had influence over the common wealth club but i searched all of the meetings and records for two full years and could not find any title that had a degree of bias or a subject matter that had only one side presentation. so i made that the case for when i went back to them and asked them for their consideration to change the title and add a person that

could contribute to the other, or some other information about the issues and not have it so one-sided. i just wanted to say that. >> while you are here, i have a quick question. >> i was going to take questions after public comment. >> go ahead. >> okay. >> miss ballard. >> commissioners, i hope to offer up a clarifying comment although it may confuse things. but we actually, to miss gong's responsibility in terms of the back up tapes. we actually switched e-mails system and so now, the back up tapes do reside in the department, but at the time of the request in the e-mails on the request they did not they resided with the department of technology just to clarify for her in the responsibilities there, thank you.