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 investigative file. so i don't think miss herrick was making any additional determinations beyond what she had initially recommended, and that we had earlierly decided on october 22nd. i think she simply is enforcing that view and decision by redacting the portions that were by our prior determination. so that is my understanding of what happened here. >> okay. and that it was privileged as part of the ethics commission investigation or as part of the controller's investigation? >> well, i think we -- mr. givner, correct me if i'm wrong, i think we determined that both are. i think these emails may have been as part of our file, the

commission's file. but it relates to both. >> okay. thank you. >> >> commissioner hayon? >> my question is in terms of the opinion that has been rentered by miss herrick, are we bound by that dismissing or is it simply advisory and we can decide what we think? >> we are not bound by her memo. we made our decisions at the october 22nd meeting. and as part of that, we asked her to review some additional documents, and she has now come back with a recommendation stating that she at least believes that. >> i read and understand that. >> so i don't think we're

bound by this memo that she provided today or that is part of today's packet. >> but her opinion certainly should help us decide and vote on whether these three emails are public or not. is that right? >> right. >> and what i hear chair hur saying is that this memo is consistent with the actions we took -- the discussion we had at the last meeting about this. and we would be applying that same standard; that we think that matters -- communications between the comptroller's office and ethics commission staff cannot be revealed, but that communications would be our staff. the fact of such communications

and any part not restricted as a communication between ethics and comptroller can be revealed. so she is following on that interpretation. >> this is what you discussed at the october meeting? >> this was discussed at the october meeting. >> yes. >> did i say it incorrectly? >> i think you said it a little more narrowly than we decided. >> okay. >> to the extent that a communication with the controller's office relates to an investigation that is covered. so internal communications, i don't really want to make -- it's probably more accurate to rely on what we decided and said at the

meeting, but with respect to internal communications what miss herrick appears to be saying here, if you redact the confidential portions, i.e., the portions that relate to the investigation, the fact of the internal communication could be disclosable. again, i think i shared my view we should follow miss herrick's recommendation to produce the redacted document. with respect to whether this is a willful violation of the sunshine ordinance, i do not think it is. and the reason is as follows: this was part of the file. it's been heavily redacted as a result of containing confidential information that is protected. and i think it was right to withhold the document. mr. givner, what is our ability

and/or our requirements with respect to redacting and producing documents? >> point of order. >> that would be otherwise-- >> through the chair, point of order, i could have sworn that the agenda for tonight said you would arrive at making one decision before you began evaluating whether it's willful. so before reaching your first step appears ethically wrong. >> mr. met shaw, please sit down. mr. givner. >> so your question? >> are we obligated to produce confidential documents in redacted form? if they contain confidential information should they be withheld? >> i think miss herrick's

approach and suggestion was correct if there is a document that contains a little bit of confidential information that can be meaningfully redacted and a chunk of information is public, to produce the public portion. just to make sure that all the commissioners are on the same page, i believe by -- in reaching the conclusion that the documents are public, non-redacted portions of the document are public, you are concluding both that these documents -- these redacted records are not records of an ethics commission's investigation or the controller's investigation and also they are not covered by the official information privilege. i think that is miss herrick's recommendation to you. >> that we find that they are not part of -- in reacted form part of the official

exemption >> could you just -- i got the first part that the redacted document are not records of a ethics commission's investigation and controller's investigation. >> i believe miss herrick spoke about that in her first hemo, the official information privilege is a privilege in state law that protects information gathered in confidence with an expectation of confidentiality from the informant. and involves a level of balancing by the government entity looking at the record, whether the public interest favors disclosure or non-disclosure. >> interesting.

a little background music for your viewing pleasure. >> i have arranged for that for all of my legal advice to be scored. [ laughter ] >> choreography comes next. >> chair hur you have answer d my question on the analysis. i just need to be reminded of the analysis that had been rendered at the october meeting. [tkpwhra*-ufrpblgt/] what . >> thank you >> what would be the appropriate motion -- do we need to take an action or is that the sanfords city attorney's determination? >> my understanding is that we

would have to vote to release. >> >> what would be the approximate motion to accomplish that? >> i think the motion would be to release the document as redacted by miss herrick. before we do that, this was calendared as a single agenda item. i do take mr. menat shaw's point that they are separately enumerated within item no. 4. but i do think we can take them together. is that right, mr. givner? >> yes. >> okay.