>> we do need to address both but not necessarily in the same motion. >> do you think that we need to do them in the same motion? >> i guess that if we are addressing 67.26 and i will put this in motion language, but the two points that i think are important is one that the commissioner renne made that the procedure is not followed. >> right >> but secondly that the respondent has met the burden for failing to keep withholding to a minimum. >> >> there are too many negatives in there. >> right >> but the respondent has met the burden of showing that there was not a failure of keeping the withholding to a minimum. >> still too many negatives. >> they did not redact too much, they did not redact or follow the procedures for redacting. >> they did not describe the redaction properly but they did not take it and they did not redact more than they should

have. the redactions were two parts, were they okay. and second did they do them properly? >> right. >> is it better in two in >> i read the sunshine ordinance, 67.26. only deals with redaction. and it does not deal with whether or not the redactions are appropriate. >> that has nothing to do with 67.26. >> 67.27, is the one that focuses on whether this reduction was proper. all right? and so, that one could one, and i am not sure that we have a basis for saying whether the

redaction was proper. because the city attorney is saying, yeah you can redact it, and the sunshine task force saying that we don't i think that it is appropriate and he is saying that somebody address is not private information. and it may or may not be, it has been... the individuals involved. and but the point is, it seems to me that the clearly they did not follow 67-26 in making the redactions. they did not follow the procedure in doing it. >> well, then i will suggest that we do two separate motions then. >> we have a motion with commissioner renne? >> how can you say that 677-26 does not apply to what you can and whether you have withheld too much or not.

no record shall be withheld unless all of the information contained in it is exempt from the disclosures in the pra. >> right. >> have you violated 67.26. >> didn't you say all information? >> i thought that it was prepared to make the decision. >> yes. >> and you are not prepared to make a decision about whether they redacted too much because you think that soughts of our... >> one is i have not seen what they redacted. so how could i make a determination when they redacted was confidential. >> and in other words, if you are asking a court to determine whether the redaction was proper, the judge would look at the cards and say hey, that should not have been redacted but i don't have a i don't know

what they redacted. >> what they redacted were addresses. mailing or street or e-mail addresses. what i feel that i don't have is it our responsibility to make a legal determination and get a legal memo from the city attorney on this, or to say that they were entitled to rely on the city attorneys' opinion that these were private pieces of private information that did not need to be disclosed and that may be the end of the subject. >> there is a motion on the floor but not seconded? >> no. >> no? >> pushp >> i thought that there was a

motion that he was working towards? >> it was not complete. >> yes. >> then i will repeat it my motion was that the commission find that the arts commission did not comply in making its redaction did not comply with the requirements of 67.26. withouter reference to whether or not the redactions, the redacted material was properly redacted. but they did not do what 67.26 required them to do. >> i would second that motion, if you added a phrase something like appropriate notice in justification. >> you may have another second who may take the motion >> that is fine.

>> i think that it would be helpful to clarify. i would like to add that. >> second. >> further discussion? >> a motion now, it puts the language... >> can you read that back to us, please? >> the motion is to find that the arts commission did not comply with the requirements of section 67.26 in making its redactions, and then i believe commissioner studley added without the proper or appropriate notice and justification. >> okay that is fine. >> public comment? >> commissioners ray hartz director of san francisco open government. i think that the important part of 67.26 reads as follows, information that is exempt from

disclosured shall be masked in order that the non-exempt portion of the record may be released and keyed by footnote or other clear reference to the appropriate justification for withholding the required by section 67.27 of this article. i think that is pretty clear. and i like to point out another thing and nowhere in the sunshine ordinance task hearings, have we actually received anything to show what the city attorney said about this matter. is there any possibility that maybe the discussion was held and was very convoluted and miss patterson misunderstand what the city attorney said and or any possibility that someone might come over and to cover their back side and said that the attorney said it. nowhere have you got anything to show what the city attorney said about this matter. and you are going on and on and

on about the city at attorney said this or that and you have no idea and you just have a bunch of here say and the people with request in this and saying this is what i was told. and that is it. a lot of changes have been made by mr. chaffy by the way, and it mentioned several of them together. and the meetings. and unless you fill out a speaker card you can't speak. we know that it is a violation to the ordinance. now they change the card to make it clear that is not a requirement. they have also changed this card. if you don't need this information why are you asking for it? ? but the bottom line is if i fill out a public document i assume that it is all public record and unless it is something like a medical record or something that is specifically says it is confidential, then, i have to

assume that as a public record it is disclosable, that is what the law says and the sunshine ordinance and the brown act. >> and lastly, i find it ludicris that the city attorney gives advice like this without any substance or without any written documentation or anything from a city attorney saying that this is the law. when the very first claim that i filed in the sunshine ordinance task force against the city attorney i requested confidencalty, and he wrote a letter back to several people listing my name and saying that it is ridiculous to consider mr. hartz should be confidential because everybody knows who filed the complaint. so if he respects confidentiality, why didn't he respect mine? >> okay, any further public comment?

>> call to the question? >> all in favor? >> aye. >> aye. >> aye. >> aye. >> passes unanimously. and if you would like to hear it one more time i will let you read it back to you. >> we have found that the following, commission has found that the arts commission did not comply with the requirements of section 67-26 in making its redactions. without providing the appropriate notice and justification. >> thank you. >> so now, is there a third part? >> there may be, and there may not be support for this on the commission. but i do to me i think that it is important to also say that the respondent has met the

burden pursuant of 67-26 of establishing that the information that was redacted was appropriately kept to a minimum. and the reason i think that is important is because that i think, is arguably what has been put before us and i do have some concern about not addressing it if it was put before us and i am prepared in addition to the commissioner renne's point that the burden is on the respondent, if we don't make a decision on it, then the sunshine ordinance task force decision i think controls, to the respondent's burden and based on the memo and the testimony i think that they have met the burden. >> other comments? >> well, i'm not sure whether the third question does not relate to 67.27. in a sense of what mr. hartz

point was that the thing that is required if you are relying on some basis for redaction, you have to provide a written statement as to what the basis of that redaction is for. and that may be encompassed in the motion that we made in the earlier saying that they did not file the notice but we only referred to 67.26. and which did not, or is not the section that deals with what you have to supply to the public to justify the redactions. >> i agree that it discusses in more detail the types of things that can be withheld, but 67.26 does say that no record shall be withheld from disclosure

unless all information contained is exempt and if there was a decision by the task force that that was not met because withholding was not kept to a minimum, i think we are required to address that issue. push >> i think that we are required to address it unless there is another source of information that we need and we are required to address it and do we have the information that we need to address it now. that is what i am uncertain about. >> what sort of information would that be? >> well, i am trying to say that it was the redaction okay or kept to an appropriate minimum because they relevant relied on the city attorney or do we need to know what the view is on this to make the decision, or the determination ourselves. >> so i guess... >> i mean, let's just say that for a sake of argument that we

can make the decision independently, and then, i think that it would be helpful to know where we stand on that. if the answer is the same then, it is not particularly relative for this discussion, whether we are doing it just because the city attorney says to do it soar because we are independently assessing it. >> mr. st. croix? you look troubled. >> but that is how you look often when i say things. >> i think that your first assessment was right. i think that the prior motion that was adopted spoke to the fact that the redactions should have included information on the justification and didn't. that does not mean that the redactions themselves were improper. i think that you have already found that they should have followed 67.27 and didn't.

>> and that you are leaving... and you are intent or your discussion was that the redactions themselves were not improper and at least that is what it seems to be it themselves fl >> that is why i wanted to make the motion and i think that they are finding it. >> do you want to make your motion? >> i do. >> do i need to restate it? >> i move that we find that the respondent has met the burden of establishing that the information redacted was appropriately kept to a minimum pursuant to 67.26. >> yes.

>> further discussion on this? >> just so that i am clear on this, would it have been more appropriate for a written determination to come from the city attorney's office which was then included as a part of the proper information and sharing the reasons why they were redacted is it because it was where it was taken and it was a verbal communication? that did not meet the threshold? i guess to me... >> it could happen again? >> right. >> you could call the city attorney and you could say and it could all be true. the city attorney made a determination and i am not lying. you know, duty bound to up hole the law and it is correct. but, could there still be not

enough of a... >> i guess... >> a major follow in order for there to be another violation. >> i see what you are saying, commissioner and i have different views as to whether the city attorney has the last so-called last word here. and i think and i am certainly willing to be persuaded that we are called to make an independent assessment here about what the right answer is. and to me, in this case, it does not matter because i agree with what the city attorney said in my mind. and i think that issue comes more to a head if we disagree with what a city attorney said. well, i was going on commission renne when he was saying that we could educate the commission. in that part of the education would be, it is not required but it is strongly recommended that you would get a written

opinion from the city attorney to provide to the requestor of the information? i don't know if it means anything and, i don't know if the word of mouth is better or worse or a written determination is better or worse. because there is that and there is the when that is happened and then the when is what is certified here and you told me only when i asked. you did not actually... and there were a series of procedures that were not followed. but would that... would getting a written sbons have triggered the rest of the procedures to be followed was my question and in which case you would less en, if not mitigate the violations. >> there is a ten day window in responding getting a written opinion from the city attorney does not... >> i am in favor of the motion. i do think that it would be worth while as a matter of policy going forward for the city and the sunshine ordinance

task force and whoever else wants to play, to think about what should or what should be treated as confidential here and it is a very subtle balancing. and i think that in light of what they were advised at the time and i would vote in favor of this motion. >> could i ask the staff or the city attorney have the u.s. or whether we are we are empowered to make an independent determination? >> sorry. i believe that that is the sort of the problems with the ethics commission here, is sort of that, that is what you are tasked with. and otherwise, i don't know how, how this is could be resolved if the city attorney says one thing and the task force says another without the ethics commission resolving

that determination, and i don't know how the ethics commission could perform its duties. >> so is the consequence of that we should be carrying out the kind of inquiry about the balance of this information and the public expectation about whether it will be shared verses the public interest expressed strongly here in san francisco about the public's access to the information? >> if that is it, i really would like a rest room break before we do that. >> i think that true, i don't know it as a joke, i think that if we think that we should make an independent determination about the balancing of those factors then, i want to go and read these cases. and then i usually, when i have to do that i have somebody give me a memo and a judge who has to do that has time to do the research or has it cued up for

them. >> you may be right but if so i feel like we should be having that conversation among the five of us about the public's expectation of privacy relative to disclosure. and that is or may be your job but i don't feel like we have done that balancing. >> commissioner it would involve what? >> an undertaking, like what? >> sure. >> it would involve a very long discussion. >> i would like the supervisors there or a child court proceeding. >> when you said do you think that we are entitled to make a independent determination, what were you thinking the consequences would be? >> i guess that i am prepared to say that i i think that there is a privacy interest in

one's address and phone number, and i think that the citations are persuasive, and there weren't, and i didn't see the law cited crower contrary and i think that the burden has been met and is to the extent that this is binding precedent? yeah, i mean i suppose there is some concern that more robust response would have may have changed the bounds but on these facts, the private information i am prepared to... >> and i feel...

>> i testified before a board and i handed in a comment card and i think that i wrote down my address, if i wrote down my address, i would not have thought it out of the question that it would either go into the record with my address or that they would call me by name and address. but i don't know if thais the kind of inquiry that we should be engaging in here. you know, how fundamental of a discussion about the expectation of privacy that people had. it just, this is where i am viewing on this task force makes me think i am not a judge.

we ourselves we have a voluntary sign in sheet but we do not request cards. >> we don't require names. >> so, i think that every commission handles it a little differently. >> and we say that and if you say that it is not our decision to make and we are not tasked with that decision. we are tasked with deciding whether or not these cards with these people's addressed should be disclosed publicly and i think that we are tasked with it. and if the answer is, well the city attorney said okay and therefore we can do it that is one way to go. to me, i mean, it does not

matter, and it does mot matter to me because i agree with the city attorney and thinks that no this information should not be turned over to the public pursuant to the sunshine request and if we don't decide that issue for whatever the reason is, those records are disclosed. but i don't think that we can just punch it. i am searching for a good question presented because the question, one question is the city agency entitled to rely for a legal opinion for a legal determination on the view of the city attorney that is one question that i might answer in one way and the other question is what is the what do i think or what do the five of us think is the privacy expectation of people who put their address on a comment card? >> but i think that the

question is before us is whether those cards should be publicly... those cards that have been identified should be publicly disclosed. >> and if we don't answer that question, then, the respondent has not met... i guess that we could continue it. ultimately, did the respondent has the burden because the sunshine ordinance task force found that there was a violation and they do need to be turned over and if the respondent has not met the burden then they are turned over as far as i can tell from the regulations. >> the record states that the procedural question. >> i mean that even if you say that we have not met... we find

that the arts commission has not met their burden, we have not made a determination that in fact the information should be disclosed. the arts commission can choose not to disclose it. and if somebody wants it, they will have to go and get a court order. >> so your point is that it may not end up being disclosed if we don't reach the question? >> 67.27 that they did not set forth the justification of... the guess that the problem that i am having is how do i make a determination about whether in this context the information

that was put on the cards was not intended to be private. i mean there is certainly a strong argument that when you put your address on a card that you hand in to the commission, that you are not expecting it to be kept private. >> but i just don't feel that i could make that determination or i could use it to make it private. and we made a finding that they acted properly in withholding this information. and they acted properly within the context of relying on the city's opinion and whether that opinion is correct and whether or not, some independent

judicial body would say that it is incorrect, but in so far as the art commission did not act unreasonably in my mind and withholding the information and with lying on the city attorney. >> under 67.27 they should have applied a written statement as to why they were withholding it. >> i do think that they did provide this new 29 response explaining why it should not be disclosed. >> just in response to yours. >> the letter that...

>> i move to find that the respondent has met the burden to establish that the records that were redacted need not be publicly disclosed in unredacted fashion. >> i think that i provided at least my reasoning fairly thoroughly. >> is there