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. >> public comment?

>> 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