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 violation?

>> well, right, but the and maybe i am looking at the wrong thing, but i am looking at the december 5, 2011, sunshine complaint? and the notification by the task force and says that the task force provides willful failure against ginsberg and sarah ballard. >> right, and just not, i believe that is the task force's long standing practice to forward complaints to you when the task force finds a willful violation, but, that question is not before the ethics commission under chapter two, the only question is whether there was a violation of the ordinance in this case. >> okay. >> what i was looking at was i think that we are all looking at the december 5, documents? where it speaks to willful

failure and official misconduct against ginsberg and ballard and then a referal for failure to comply with the order for buell and gong. >> it would not change my view because i think that the... why is ballard included under willful failure? is there any... that just is how the complaint was... >> that is my understanding of how the task force operates. i have never attended a task force meeting and we refer may find willful violations if they refer them to you. but, i mean commissioner studley is right, they did refer this and did refer buell

and gong to us for simple failure to comply with the order. >> mr. pilpal do you have something to help us through this? >> looking at the december 5th transmitter there was a finding of willful violation, the language is not as precise as it could be in regards to ginsberg and ballard, but a failure to comply with the order and presumably a violation. and i would also note on the page 5, 1 a, 1 a and d make some distinction between willful and non-willful violation and later on in your

determination, that distinction is lost. so, i think that you could further delineate between miss ballard and miss gong. and mr. buell on this. >> okay. well, in my view, i would think that my view is that miss gong's failure to comply was willful, it certainly would be non-willful as well. it would still be a violation in my view. with, mr. buell, i don't frankly don't see the violation, it appears to me that he searched and did not find the documents and i don't find the deleting of the documents that he had to be problematic even if that were relevant to our discussion.

and at least as it relates to the sunshine violation. with miss ballard, it appears that they were alleging willful violations and so, but, again, i don't think that the failure to save the document is necessarily at issue in light of what the sunshine ordinance task force found. >> i would just caution the commission against you know, this matter. separate finding willful violations that is not what the ordinance or what your regulations specifically authorize, you do it is not how this issue was agendaized. >> chapter two, referals to the egg ethics commission.

>> of what the task force considers willful violation. >> right. >> and in sections d and e, on page 6, of chapter two, the regulations explain what the ethics commission can do in making its findings and issuing orders. and there, it is a matter of finding violations or non-violations? your point is that we don't have jurisdiction to handle 1 a, 1 aand, and b and under dand e our findings don't require of willful or not. >> exactly. >> you do have jurisdiction over it, i would recommend if you are going it find a violation that you just find a violation. >> my only concern is that since we are dealing with a referal, if the task force

found a willful violation in order to determine whether the burden was meant, don't they have to i mean would we have to use that same standard? i mean? when they make the referal under chapter two they have the burden to find that the employee did not violate the ordinance, in the way that the task force found that he did. it would be one thing if that employee had to prove that it was not willful. it would be a different thing if he had to prove that the violation did not occur. so i don't think that it is... you can't, does that make sense? to determine whether or not they have met their burden of overcoming the finding of a

willful violation? >> i guess that the way that i would read these regs. whenever you receive a referal that alleges a willful violation, you can find that the person has committed a violation and issued the orders that this section allows. >> and maybe, it it calls out for willful conduct for certain parties i don't think that they fall under that provision, but that because of that, it will be symbolically significant whether it is willful or not. >> for the public who is listening to us muddle through this, these are new regulations, we knew that today

would be a challenge, because we are applying them for the first time and we appreciate your patience and participation here. >> let me make a clarification in support of mr. gibner on this. >> sure. >> when the task force sends you anything with regards to willful failure which shall mean official misconduct, it will usually state 67, 48 in it and in this case, it didn't, for the reasons that he is explaining to you, that it is more symatincal. that this was willful, they found it to be willful of that particular non-department head of it, general employee. and so it is just really, they could have said, they did deliberately. instead of using the word willful, which will be a red flag for you, they felt that it

was done deliberately and so i would just, i would agree with mr. gibner having served on the task force during this particular time, that that is what the intention was. >> thank you. >> any other comments from the commissioners? >> commissioner renne you have been quiet, anything to add? >> no, but i would tend to agree with the city attorney, on his interpretation that we under section 2, can find that there is evidence of a violation but not a willful violation that may be a technical, i mean, i am troubled by saying that whether you get 24 hours and they do it in 36 hours, saying that that is a significant factor.

>> but where a significant factor and it may be a violation, technically of the 24 hours but i don't find that it is something that requires great admonition. >> i guess one of the reasons that i have been quiet is that you know, in litigation, when you have a document production request, you are asked for documents and then you say, if the document ever existed, but no longer exists please identify it, well, that is not what the procedure is at the city level, and these people are literally asked, do you have the documents? and they check their files and the ordinary course and came back and said no. it turned out that the documents had at one time been in their files. but they were not and not

expected to respond by saying, no, we don't have any, but, we deleted them. >> i mean, you know, maybe they should. but there is... i don't think that there is any requirement on them. that i am aware of. >> yeah, i'm not sure that there is a hook for the situation where a employee does not retain a document that should have been retained at least not through the sunshine ordinance as mr. gibner suggested. is there a further discussion? or should we make a motion? >> is there a motion to find that miss gong violated 67.25,

with respect to failure to respond in a timely fashion to the request, but no violation by any of the three respondents as to the other violations that were found by the task force? >> did i say that much correctly in light of the standard? >> yes. >> so moved >> is there a second? >> a second. >> >> all in favor? >> aye. >> aye. >> opposed? >> hearing none, that motion passes. >> i think that we then need to determine what order is issued for the finding of the violation. here, i think that it is

appropriate first of all, i think that commissioners renne is right, in a situation where they are late by two days, because they are trying to get additional information to provide to the complainant, i don't think that is a particularly egregious problem that requires a lot of remedying activity on our part. i would suggest a letter to the parks and rec saying that they should comply with the 67.25 in the future and that document requests need to be responded to in a timely manner. >> i just like to add, i like the way that you put that, that the letter is to the agency because this is one of the questions on this perhaps, lengthy list, is the responsibility of the agency had to see that it is possible to carry something out.

and that the people are trained and had the ability to do it. verses the most junior person in this situation being the only one as to whom we found a violation, because it is technical and crisp violation. it may be that that good practice, that we in the sunshine task force. the way that agencies are given information on training, maybe it would have been better to provide a partial answer within the 24-hour period and say that not all of the responses are in. is that, would that be more transparent for that which is available and meets the needs of people and the other is teaching people how to search both what to retain and search. i realize that these are boring and unpleasant responsibilities and that we have a lot of departments and employees who

have different levels of experience or technical capacity and maybe a constructive thing that we can do with the sunshine task force would be to collect these kinds of questions and get them to the people who do the training and advice for the agencies. i am not saying that we should do it or take it on ourselves but at least identify some places where we think that there are or we hear about the good practices or we spot things that they could be helpful to the city agencies about. and i don't want to take on something that we don't have the expertise or the capacity to do or it may be as simple as saying, with a 24-hour turn around, how can you get people who are trying to write a story or going to a hearing or follow up, is there, or would it be better to hold them in violation for missing the deadline or get people something? and i may be off base about the solutions but at least try to

point up some of these things so that the people who have the training responsibilities are aware of how these things actually are playing out. >> i think that is right. and you know, i have a lot of concern about getting too, or providing too much kind of providing too much direction as to search the terms in the light because having done it in litigation it takes on a life of its own and it leads to, or it will not lead to a fast resolution and providing a document that you identified as the whole point here. but, it definitely something that should be on the list and something that we could continue to work on resolving. >> okay. should we take a quick break? before the next two items? >> any objection from the commission? >> okay, let's