proceedings. because the point the sunshine case ends up in a referral for enforcement, at ethics, it's no longer an allegation. thank you. >> on the -- with respect to the title of the ordinance, or our response to the ordinance and our handling of the ordinances, i think the titles are fine. i don't know if any other commissioners have thoughts. my view is that we do handle some sunshine complaints directly. we handle some that the task force would have made a determination on, but ultimately i think the regulations are clear and the title accurately reflects more or less what we're trying to do

with them. thoughts? >> i agree. i mean, i suppose we could say ethics commission regulations for complaints made under the sunshine ordinance, but i think violations is fine too. either way. i think it's fine. >> any other thoughts? does the city attorney have any view on that? >> john givener deputy city attorney. your current titles are fine from a legal perspective, the proposed title is fine from the legal perspective. the one thing i would say that you shouldn't amend any portion of the sunshine enforcement by enforcement regulations tonight because that is not on your agenda. >> mr. st. croix, can you respond to dr. kur's question

about 6a? >> dr. kerr is absolutely correct the bar is now one commissioner member can calendar a complaint. i'm not sure why this copy went out, but it's typographical or an old copy, but it's one that has already been voted on and in effect. >> thank you. any other discussion from the commissioners on this agenda item? is there a motion to approve the changes to the regulations for investigations and enforcement proceedings? >> is moved. >> second. >> all in favor? >> aye. >> any opposed? hearing none the motion passes. the next item on the agenda is

discussion and possible action on reports submitted by lisa herrick formerly of the san jose city attorney's office. as you will recall and was referenced previously, on october 22, 2012 we held a hearing on this matter relating to ethics complaints brought by mr. shaw. we also reviewed and considered paper submitted by mr. shaw and heard argument from mr. shaw on the matter. during that hearing, we asked miss herrick to review a number of determination if they should be disclosed. she subsequently conducted the review and identified set of

emails that she believes should be produced in redacted form. so this item agenda is then to discuss whether those emails should be produced as redacted, and if so, whether that has resulted in a willful violation of the sunshine ordinance by the executive director? any comments from the commissioners on this matter? >> do i not get a five-minute rebuttal on this? through the discretion of the chair? >> mr. met shah i will give you a little bit of extra time during public comment, but i would like to hear from the commissioners. >> thank you. >> as i recall, this relates

tangentially to the subject matter of the two complaints, which i recused myself for reasons stated. the issue being raised in this particular instance does not appear to involve the same or doesn't go to the merits of the two underlying complaints. but i would propose that i not participate in the disposition of this question. >> i have no objection to that, commissioners? objection to that? i assume there is no voter action we need to take with respect to commissioner renne's recusal. >> you should vote to. >> so moved. >> second. >> public comment on whether

commissioner renne should recuss himself? >> thank you for your integrity, mr. renne. >> all in favor? >> aye. >> opposed? hearing none, the motion passes. commissioner renne shall be recused from discussion of this matter. any other views from the commissioners on whether this document should be disclosed? >> i would find it helpful if someone would recap the standards for redaction? what is disclosable? and by what standard one would determine when redacting is appropriate? or unless our -- unless what we're being asked to do is purely provide these documents as redacted, or not at all?

>> so my understanding and i will perhaps pass it on to mr. givner to go over the standard. i have printed out for myself the relevant sections. but to recap procedurally what happened, the miss herrick reviewed and determined that the redacted portion was privileged. that was covered by state law and/or local ordinances that protect the disclosure of this information, including c3.699-13a. her proposal i believe is to produce the information as redacted. >> not having that section at

my fingertips, or in mind, and i don't -- but it's hard for me to make a judgment on this without knowing what that privilege -- knowing more about the nature of that privilege that would require that certain information be redacted. >> i am going back to her memo as well. this is the longer one. >> thanks. >> following up on commissioner studley's question, is the privileged standard that we're looking at the one we're talking about all notes, preliminary reports? controller's benchmark studies, audits, investigations and other reports shall be

confidential? >> that is -- >> that is the first part of it. >> first part. >> and the second quarter part of the standards is records of any investigation shall be considered confidential information to the extent permitted by state law. >> correct. and then there is the evidence code 1040 section defining "official information." >> okay. and that portion we don't have in our memo, right? tonight? >> here it is if you want to take a look at it. >> okay. :mr. givner, have i missed anything? >> no, no. i was just searching to see if i had evidence code 1040. i would note that infection f1.8110b involves whistle-blower complaints and the second section you noted

c3699-13 involves ethics investigations. do commissioners have objections to taking public comment now. >> no. >> it sound like what you are offering to mr. shaw is something outside of public comment and as a party to this proceeding you are giving him five minutes and after mr. shaw's five minutes open up the floor for public comment. >> okay. we can do that. >> thank you, mr. givner. i'm turning into mr. chatfield

my 150-word testimony that i will remail so you don't have to rekey it, introducing typos. i'm sorry, can you hand me that copy back? never mind, i found what i was looking for. so you will recall that when i was here, in october, i testified that 1040 doesn't apply and i also testified quite strongly, both here and at the sunshine task force that c3-699-13 doesn't apply either.

i have been denied access to these records for two years. regarding access to litigation states, "advice and compliance with, analysis of, and opinion concerning liability under -- or any communication otherwise concerning the california public records act the ralph m. brown act, political reform act and san francisco ethics code or this ordinance," are -- pay atection to this, are public records. subject to disclosure. notably, section 6253c of sippra gives agencies ten days to notify requesters, whether

the requested records are exempt or disclosable and that if an agency fails to notify the requester in a timely fashion, it waives any applicable exemption. now two years after i filed this records request, you are going to tell me that the two years is not that much longer than ten days. sorry, you don't get to claim an exemption now when you had ten day to do it, when this case was first referred to it and you sat on my case for a whole year. do i have your attention, miss studley? moving along, the emails that miss herrick identified are presumptively public records. and so mr. st. croix has to

identify any particular exemption that you may now be attempting to rely on. there is nothing in the charter as miss herrick admits that exempts those emails. they are emails. they are not part of the investigative file. second, the non-internal emails, which miss herrick wrongly claims are confidential under section f1.110b are not, in fact, covered by that section. although she underlined the operative description of the confidential documents, the word "communications" or any word that would describe an email is missing. under the constitutional requirements for public access, these statutes must be read narrowly. thus, the description of what

is confidential can't be expanded to cover communications; which are a completely animal in the investigative file, which was the subject of my complaint. those should also be disclosable, unless otherwise exempt and once an investigation is closed i maintain it becomes a public record and the entire file needs to be released. this commission should ask for an explanation from mr. st. croix about why he forget that these emails were in the file. you should have been made aware of that, at least by last october 22nd. and it took miss herrick, in my humble opinion, the wrong

jurisdiction to arrive at that conclusion for you. so i am encouraging you to release those emails. it's your ethical duty to do so and it's not your ethical duty to dream up a further exemption to withhold them any further. >> public comment on this matter? ? commissioners, ray hart, director san francisco open government. as i mentioned earlier, every agenda of every board and commission in this city has on its agenda know your rights under the sunshine ordinance. and yet it is really really a task to push that rock up the hill and get people to actually follow the law. for example, this body in my 150-word summaries, when i had

four orders of derrillation from the sunshine ordinance task force, all of which were ignored until at some point somebody made a decision that my 150-word summaries would go into the minutes as required by law. there is no explanation about that, simply changed. so now i have got one issue being handled by four different commissions in four different ways. trying to get documents is one of the most frustrating things that a citizen in this city has to deal with. you want to get involved in the public issue. you want to get, in particular, financial records. and yet, city employees in this case, or in my case, louis herrera, the city librarian used his office to withhold public records from me.

he just basically didn't want it made apparent to the public that all the claims that they were making at library commission meetings had no basis. but $10 million that was claimed as a gift to the branch library improvement program was just that, nothing, but claim. and so when i went and i tried to get these documents, he held off for nine months and now we have mr. menat shaw and he comes to you and he wants to get documents about a complaint. following these complaints is kind of like a black box, you drop it in the top and whatever comes out, you are expected to live with. same goes with the office of citizen complaints of the police department. i had a city and police inspector lie to be about the existence of a document. he repeated that lie to a

deputy city attorney, when i petitioned for the supervisor of records to make a ruling. told her that there was no document. and then three months later, oh, exemption. as mr. menat shaw says you have a certain number of days, a certain time limit to claim the exemption. if you just followed the law, we wouldn't get into these issues, but you don't, and they drag on for years. >> good afternoon again, dr. derrick kerr. along with mr. rivero, i was one of the whistle blowers who exposed misappropriations in the gift fund that is at the root of this sunshine concern that mr. menat shaw has raised.

what really struck us was the inordinate delays in getting our concern attended to, both by the ethics commission and the whistle-blower program. we also had complaints about department of public health contracts, conflicts of interests and those complaints took over two years to get resolved, at which time we had been driven out of the hospital. so having talked to almost a dozen other city whistle blowers, all of them experienced the same retaliation. there is no whistle blowers that could get away in one piece. so we have lingering concerns that the ethics commission is complicit in burying whistle-blower

complaints and in enabling retaliation and destruction of whistle-blowers. i think it would help everyone, particularly the whistle-blowers, if you would release something and you can honor confidentiality, but you don't have to get into this ridiculous secrecy where nothing can be revealed. because that feels like you are doing something wrong. thank you. >> good afternoon, thank you. i think it's very important to say a few words in support of mr. menat shaw on this issue. and the memo, the two memos, one from your staff and the one from the outside attorney are regrettably ambiguous. mr. menat shaw is quite right

to point out that unless something is specifically exempt, it's by definition "a public record," period and it's a public record and disclosable unless it can be withheld under one of the specific sections of the state law. and if you look at the two charter sections that have been quoted, both of them are set out within the scope of the applicable state law. now the memo before you says that we're not exempt from disclosure, but may be disclosed. well, a determination that they may be disclosed means that they were public records and your obligation is to disclose them.

now i can't help, but observe, because it's come up so many times, that the ethics commission is supposed to be the most ethical of city hall bodies. and the fact that you have been repeatedly challenged on your own openness and willingness to disclose is, i'm afraid, the essence of this entire question. and my compliments to mr. menat shaw for being so fastidious and so faithful in his commendable pursuit of this issue. thank you very much. >> david pilpel speaking as an individual. several points i was not on the

task force at the time this matter was heard. so i'm continuing to speak on the matter having not heard it when it was before the task force. also i believe i raised at the october meeting this particular nuance about emailed communications that might have gone between the commission staff and the controller's staff that were not part of either investigative file, which is what led to this. for that either thank you or i apologize or just working through this. i think it is pretty clear that all of these records are public records. i think the question is whether these are records subject to disclosure and to that end whether they are subject to disclosure in a redacted fashion going to commissioner studley's question. based on the memo that i have seen in the public file from miss herrick, i agree that those records that are part of

the investigation, study, audit or other report from the controller's office are confidential under charter section f1.110 and those records of the commission that are pertinent to an investigation are confidential under charter section c3-699.13. however, miss herrick identified three pages' of emails that don't fall into either of those categories, in her opinion. and are therefore subject to disclosure. this is obviously a complicated analysis looking at state law, the charter, and the sunshine ordinance. in this case i believe the sunshine ordinance is trumped by these two charter provisions that make certain records confidential and to the extent what that they are confidential, they are confidential under evidence code second, 1040 and not

subject to disclosure. again to the extent that these three pages don't fall into those categories, i believe they are subject to disclosure in a redacted fashion. >> that is not what the sotf ruled >> mr. shaw, please. you had your opportunity to speak. mr. pilpel you may continue. mr. shaw, please give mr. pilpel a chance to speak. thank you. >> so to conclude, i believe that those three pages should be provided. neither memo discusses what the staff's rationale for non-disclosure at the time of the original request was. that may be something that is worth discussing. so i think it goes to the question of whether there was a willful violation or a different sort of matter? i believe mr. menat shaw is free to make a request at any time, particularly now that he believes that the

matter is concluded and to the extent that there are records available post a concluded investigation. there may be additional records that are now subject to disclosure. it really turns on what was available at the time a request was made? so just my final point, i am particularly troubled by the fact that apparently the commission has received either all 24 pages or at least the three pages and is able to review and consider those, which the public obviously hasn't seen, because that is the subject of the matter before us. i don't find in the charter or in the sunshine ordinance a provision that allows incamera review of documents this way and i'm still struggling to work through that issue, but i will deal with that on my own and let my comments stand unless you have further questions. thank you. >> thoughts from the

commissioners on this item? >> can i ask mr. givner to address that point about the incamera review? >> sure. documents that are distributed to a commission for their review, that are not otherwise privileged or protected by law must be made public. so the staff's memos to you on public matters, if they distribute them to you, they must be made public and attached to the agenda packet. confidential documents protected by a privilege can be distributed to you and are not part of the public file and one example of that is if you are considering legislation that raises potential legal issues that could lead to a legal

challenge we'll sometimes give you a confidential memo that is protected by attorney-client privilege. you may review that before the meeting. you don't make that public. in this case, the documents that you were -- that were distributed to you, the city has made an initial determination through the executive director that those are confidential. the commission tonight may decide those documents are not confidential and then they will be disclosed. but at this point, it was proper for the san jose city attorney to provide you those documents in confidence. >> okay. thank you. >> any other comments from the commissioners? >> well, i guess i'm just not sure -- it's not clear to me

that the text of the emails meets the definition of "confidential information." that is what i'm struggling with a little bit here, but maybe i need to be directed in a more analytical fashion. >> my view of this matter is that as redacted, i think miss herrick is correct that the information can be publicly disclosed. now i'm not sure how enlightening or satisfying the redacted information -- the redacted version will be. it appears that the information that was redacted relates to communications between the commission and the controller's office, which we previously determined were covered by this privilege as part of the