>> once again, greg miller, amateur. i don't know what to make of all of your issues about the discloser of the records and things like that and great detail but what might be pertinent to ballard and the deletion of it she was basically dising these people and they were bias and to insight the community in asking for a complete, shutting down, to not to do the thing. look at the, look at the e-mail that she wrote, on the 20th. >> the other thing is the category for retentions verses other retentions, i am just looking at the department policy and they do talk about

the essential records and essential records do include among other things, records required for the protection for the rights of individuals. and that could be the individuals within the department or something like that. but, i think cha is essential here and what seems to be glossed over because we are focusing on this one narrow issue here. is a much bigger one that i hope that you take up in some form or another and that is you have clear evidence before you. that you cannot deny in writing. that members of the department, highly paid members of the department directly reporting to the director of the department, basically tried to intercede and prevent the public from meeting and discussing a matter of public policy and used the weight of their office and their title to basically try to keep people from meeting and discussing

something as a public concern. i think whether or not that is addressable under the particular thing that you are hearing tonight, would i ask you just as a citizen, this is something that you as the ethics commission needs to take up. not necessarily to find somebody guilty of something. but to establish a clear policy and i would hope that policy would be one that you would agree with. that the public servants, both the people who are paid, and the people who volunteer to do the wonderful work as commissioners should not be turning on the public, especially in private through back channels and using their titles. to denograte them and to disempower them and try to prevent them from convening and meeting independently of the city. these are not terrorists or the red army brigade, this is the ex-director's spur this is the

conservation director of the auto bann, and the regional director of the historic places. areas. so this is important. you need to take this up and you need to look at it and help the city learn from this mistake. thank you very much. >> good evening commissioners, i'm very, very concerned right now, okay? i am a little concerned about how this is going to proceed through all of the other ones. because i am hearing suppositions being made not based on the law, i think that it the law would do this or this law should do this or i am hearing those kinds statements instead of referring to the law as it applies. mr. gibner you are wrong, we have document storage, whether

it is stored at iron mountain or dt in a back up system it is the same thing and there is a requirement for retention and when or wherever that retention is, it must be requested no matter what the location is. whether there is no policy, or it is not a matter of policy, the law specifically states that the retrieval of those records must be had whether they are in a person's hand or not. whether they are in storage or someplace else. the only thing that can't be retrieved are ones that can be destroyed. okay? those are the only ones. now, if you are going to take the retention policy, as the law, that is even more concerning because you have not even determined whether it is correct or not. and i stated under section 8.8 actually, used all of 8, that most of this, is embellished. third off, i was very concerned

to hear that there was some letter that came from the city attorney's office in representation of any or all of the respondents here because under section 6720 i that is not allowed at all. it can make opinions, they can offer opinion, as to what this is publicly originally applies to everybody across but they can't specifically represent any one public official, except if it is for litigation, with regards to sunshine, if this were a court of law then the city attorney could then represent them. but not before this body. so i'm a little concerned about where this is going right now. because a lot of it is becoming very subjective and it is not based on what i'm feeling a good representation of the fact of law. and i am urging you again, to

continue this item, leave the admin code 8 because that is what i based my decision in the sunshine task force on in sending you this determination. that is what i had to base it on because that, that is where i had to go to find the detail. thank you. >> >> commissioners, nancy (inaudible) again, i want to reiterate that a response that says we have no records responsive to your request, tells me, nancy wo rful that there never was a record, there is nothing. they don't have anything. it is not that we don't have it right here on my desk in the

inbox we never had it that i expected a record that somehow became eliminated or deleted or thrown away. i want you to tell me that. i want you to tell me in this city government, that you had a record that for whatever reason, was legitimately disposed of. but to say that you don't have one, means that the event never took place. this is where we are coming from, this is a big deal. this is going to be so important to you, because it is going to come back 100 million times, this is what we are screaming about from the public. we want our records. if you don't have a record because it never happened, that is what that means. but the very second that there was a record, that somehow evaporated off the face of the earth because of whatever reasons we are hearing here tonight, i need to know about that because that tells me there is someplace else for me to go, something like an it department, in the department or something like the department of technology.

and two places and i could have had a much different response if i had known that information. also, i would like to say that i could not believe sarah ballard, she wrote an e-mail on figure one that is long with a great sentence in here that she accuses the panel of being deeply bias and no interest in discussing facts and she made some very, very disturbing comments, she is an employee employee, she is on my nickel and she is making these horrendous comments and she does not remember that she had them and just says, oh, you know, she did not say that she deleted them, she just does not have any records any more. i can understand why because this is a daming piece of paper. i don't think that it is a good idea for you to pass on this second group, you let mr. ginsberg got a pass, not these people. miss ballard has been found

guilty of doing something, she has not been forth coming to this body or to any of us. she did not come in and say, gee, olive i have records and deleted them now what i do? she just pretended like they never existed. this is an indictment, you can't ignore it. thank you. >> good evening, my name is nan clark i have never been to an ethics commission meeting and i think that you have a really hard job ahead of you and i like to speak to that just briefly. earlier tonight, in the meeting and i don't know who said it, which side they were on or even whether it came from you, it has been a long evening, it was something to the effect that the reason we have the brown act and the sunshine ordinance the california public records act is because government activity must be as transparent

as possible. and i think that you found tonight and both of the cases that you have heard that the goment transparency is not very transparent. and whether we talk about it in terms of e-mails or we talk about it in terms of budget and finances, or we talk about what is happening in particular department or not happening. obviously, you face the task now ahead of you, of figuring out how government activity and it means government across the board for all of us, be transparent as possible. what my government is staying about me and what your government is saying about you, behind your back, possibly, without your knowing it, what kind of financial records are made available to the public, are they complete or they whole or understandable? what kind of other policy decisions are made? that are really sunshine to the public in compliness? i don't envy you the job that you have ahead. and i know that you are working

very hard to be as fair as possible. but i think that you need to talk among yourselves well, then you have to make it transparent, but you need to have some, right? you need to have... >> got it. >> all right. i take that comment back. but we do need to begin to really talk about what government transparency means, and how does it happen? and work in this city? what kind of grades you might get for government transparency, what are the principles and policies this ethics committee has to stand on? and refer to? and so, i wish you the best, and i appreciate your work very much but we need to remember these laws exist that government activity and i don't know who said it, so i can't quote anyone, but i wrote it down, government activity be as transparent as possible. and everything that we heard

tonight, was about government activity. thank you. >> president and commissioners, judy, coalition for san francisco neighborhoods. in my positions as president, of the coalition, i have been in almost in every supervisor's office in every aid's sitting down next to every aid and the mayor's aids, and i can tell you that i don't know of anyone outside of those testifying before you today that deletes e-mail. these guys keep everything on their desktop computers it is like they have a rely that says question mark? it is there. they keep it. in their inbox, i don't know why? but they do. they are the only people that

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