>> the city of san francisco sfgtv meeting of the san francisco ethics commission occurring april 28, 2014, will begin shortly. >> good afternoon and welcome

to the regularly schedule meeting of the ethics commission of san francisco, and we will begin by taking the roll call, smi, hayon. >> here. >> commissioner andrews? >> here. >> commissioner hene. >> here. >> we understand that commissioner renne is planning to attend and there he is. >> we will begin with public comments on the items appearing before the ethics commission. >> ray hartz, director of san francisco open government, just a little catch up here, i was in march visiting my family and left on march 5, and returned

on march 25th and you can manl my surprise when i came back and i found out that you had schedule a hearinging regarding a matter to which i was a party on the fifth after i was on the east coast and held the hearing the day before i returned on the 25th. what a coincidence. what a coincidence. but i will talk about that a middle bit more later. on march 24th, this commission held a hearing on a case to when i was a party i think that you can imagine my reaction when on march 26th i first became aware of the series of events. on further consideration, i realized that i was altogether pleased that this occurred. it allowed the other party to the case to the lie braeer an to do what he does so exsisitly lie through his teeth, commissioner andrews raised the question as to if he looked at

away to comply without spending $40,000 and allow me to use the visual equipment at the public library and a short answer and he did not have to and i sent him an e-mail with two slides and which is the same things that every other presenter does and he simply refused to show them. he did not have to spent $40,000, that was his deceitful way of making up a story, that would justify it. commissioner keane and why they are always appearing here and

it is because they don't want to follow the open government laws and don't want to follow the california public records act or the brown act or anything, and they certainly don't want to follow their oaths offense to protect and defend the constitution of the united states. having a hearing with one of the parties absent and making no effort to find out what the cause that have was is really a spine of co-ward yus, i think that your executive director schedule this the way that he did knowing that i would be out of town, and explicitly for the purpose of denying me my due process rights and my right to free speech and to participate in a case to which i was a party, that is kind of disgusting. other public comment?

>> mr. hartz as far as i know we did not know that you were out of town. >> you do now >> i think that we provided you with e-mail notification of the schedule and would had continued if we had heard from you. i apologize if you could attend. i sure that you it was not intentional. >> the next matter on the agenda is the discussion and public action on a matter submitted under chapter three of the ethics commission, regulations for violations under the sunshine ordinance. the complainant is dominic maionchi and the respondent is phil ginsburg director of the recreation and park department. >> is there anyone here on behalf of the complainant? anybody here on behalf of the

respondent? is there anything that you would like to say or present? >> good evening commissioners, mr. executive director sarah ballard for the recreation department and i have the detained presentation and given that he is not here and i can keep it brief and respond to questions if you have them, i did just want to say that our general manager, mr. ginsburg had hoped to be here and he is not able to be here due to a personal conflict with his daughter, but as you see from the executive director's report and the complaint he was personally named in i think the third or fourth hearing at the sunshine task force. excuse me. and just wanted to say that we agree with the executive directors and the staff's finding that he was not given the due process in that naming.

and that hour overriding interest in redacting the names and the personal information of the birth holders in this case was that of privacy and i am happy to go into that in more detail if you would like. >> would anybody like her to do so at this time? >> yes. miss ballard, could you tell us whether or not your agency engaged in any kind of balancing tests, relating to the needs of the request for the information against the needs to protect privacy? >> so we have a blanket rule that we do not share personal information. we have the personal information of over 80,000 families, people who register for our classes, and swim lessons and our birth holders. on the advice of the city

attorney, we understand that that constitutionally protected privacy right is very important and we also understand in this case that there was an alleged illegal transfer. that perhaps the public could have benefited if from knowing those names, however, we were dealing with the allegations of the illegal transfer, through the marina rules and our marina harbor master was dealing with that outside of the public records' request and so in terms of choosing, we are the custodian of records and got the records and hand went through and redacted the personal information. based on the fact that the allegation was being taken care of in another venue, if that makes sense? >> i don't understand anything about the other venue. but, in response to my question, i am just trying to

figure out, as i read the sections that are involved here, the information under section 67.26, it has to be provided unless you can point out some specific sections or laws, specific sections, that are exempt from the disclosure under express provisions of either the california records act or some other statute, that is what it says, you have to provide it, unless you can tell us, or the sunshine ordinance people, where it is exempt from the disclosure because of some express provision, something that expressly says that the addresses of these people is not disclosable under either the california public records act or some other statute. are you able to point us to any

particular law uppeder the state of california? or any other statute that expressly says you could exclude this type of information? >> well, i am not a lawyer and i know that many of you are, but my understanding from the legal advice that we received from the city attorney's office on multiple occasions for multiple requests for personal information is that the constitutional right to privacy trumps. >> in general in terms of how information that you consider, i know that you are not a lawyer and i am putting you in, and in a tough spot and i don't mean to do that, but you are the only one that we have here and for the record, that i need,vy to have some answers to these questions. so... >> it is not a blanket, while it is a policy, it is not a blanket rule that we do not share personal information, i think that if there is a compelling public interest, demonstrated that the

department would look at that understand, understand that and evaluate it and make a determination on a case by case basis. >> and actually the test is just the opposite, there does not have to be a compelling public interest demonstrated. >> have you to demonstrate a compelling interest as to why you would not disclose it. it is not, the burden is not upon the person who is seeking this information under the public disclosure laws. the burden is upon you the govern at agency to show why they can't have it and all thatvy here is these are general allegation and this is personal without explaining what does that mean? we are talking about addresses of people who have births in the marina and this gentleman wants the information related to them to investigate whether or not they are properly in line for getting on the list for births, i am speculating

because he is not here, because it is something like that. and so he wants the information about them and you gave them the names, but he also wants to know where they live and what their phone numbers are. what is the compelling interest of government in not turning over that information, to this gentleman under the disclosure acts that you are required to follow? >> i would state that the constitutional right to privacy, i don't think that people expect when they sign up for their child for swim lesson with us, or enter into an agreement with us that we share that information with the public. we don't sell it to marketing firms. we don't disclose and so i guess would say that the right to privacy, that people assume when you are dealing with a government's entity. >> so just a general right to privacy that someone might feel that they have, that would trump the statute that says this information should be

disclosed. >> that is... >> is that what you are saying. >> that is what we relied on in making this determination. >> okay. >> and also, understanding that the underlying issues, which mr. maionchi was trying to address in the complaints were being dealt with through a separate channel through the rules. >> the separate channel, that it is being dealt with, we have nothing about that before us, in the record. that we have, that we are making a decision upon. >> i understand that. >> and so i have no idea what you are talking about, two issues, one is to whether or not the proper party, has been or was added without due process, and that is one aspect of it. and the second question, which is all that i am interested in really and that is why i am asking about it is whether or not you had the legal right to

refuse to disclose this. and that is what my questions have been pursuing, and i think that you have answered them and so i want to thank you for that. >> and i think that there are at least five letters in your record, that speak and assert what legal rights we were exercising. >> i am sure that we can say it much more aply and concisely than i have. >> and i will be speaking to each one of those, thanks a lot. >> what is published by the recreation department that tells an applicant who fills out an application, for a birth, that his information is confidential? i mean he is put his name in and asking for some favor. okay? why should that have any confidentiality at all? why doesn't the public have to know who is applying for these things. >> they have the right to know who has applied, the name are public the only things that we

redacted are phone numbers and addresses and so the names are available, and the names are available on the website of birth holders and the people on the wait list, i have another master here who can let you know what legal rights people are agreeing to when they sign that, but i would point out that it is not a favor, it is a business relationship whereby there is money exchanged in an exchange for access to a birth. it is a tenant type of relationship. do you want to speak? >> i don't know moran is our harbor master and answer the specific questions about the agreement. >> good afternoon, commissioners. i can't speak to our policies, specifically, regarding to allowing others to find out

other's personal information and their home addresses and their phone numbers information that at marinas and as i managed it throughout the world is private. and it is assumed private, because this is personal information, that the harbor master has to have in the office in the event that a boat is sinking we need to know the personal cell phones and be able to contact them immediately. and for a harbor master to freely give out that information to anybody that is requesting it, would potentially leave the door open for people that are for instance, trying to sell them things and the people that are trying to sell them boats and salesmen of all different sorts that would like to know affluent whether the affluent people's home phone numbers and address sos that they could potentially pursue selling them

things. i think that it would just open up a door that is assumed closed. for when they give us the confidential information assume that we are not going to be sharing that with the sales people, and etc.. >> how do you know that? >> as a birth holder myself. i have assumed that many times. >> and is there something in writing that was given to you as a birth holder that this information that you are giving us that we will hold it confidential and we will not share it with anyone else and you can trust us, have you seen anything like that in writing? >> well i direct you to the good government guide that is provided to the departments annually and i believe that it... >> it is the cities attorney's government guide. >> yes. >> okay. >> and appendix a, page 191, provides the general rule that the department should not disclose home addresses, personal phone numbers or personal e-mail addresses to a

members of the public such personal contact information typically sheds no light on the operations of city government. >> and that document, that is the city attorney saying what he is interpreting in general, should not be shared. but does the city attorney, anywhere in the language that you have read, reference any particular statute or law in the state of california in that says that it should be shared? >> i don't have the whole guide with me. >> i will answer that. >> and it is not that. there is no reference. okay? and any statute or law that says that it should not be shared. >> any other questions? >> my i ask the deputy city attorney whether or not he could refer us to some express provision in either the california public records act or some other statute with the

exempts from disclosure of this kind of information? >> sure, the good government guide references the language that it uses with respect to whether the disclosure of personal information would shed light on the operations of, you know, government, that is a reference to a whole line of california appellant court cases including city... >> and let me, and i hate to interrupt you, my question was very simple. could you refer us to a statute, or some other, or some express provision in the california public records act, that exempts this language, that exempts this information from disclosure? because that is the only thing that section 67.26. >> right. >> would exempt it and could you give me a statute. >> so the sunshine, the sunshine ordinance that you just cited, and in another

provision of the sunshine ordinance, 67.1 g makes reference to basically incorporates california public records act law with respect to the right of privacy. and it also, and so, for example, public records acts, 6250 refers to the idea that the right of privacy has to be respected and there is a long line of cases that are interpreting it. >> i am sorry i don't want to interpret rupt you. we are dealing with the cases in a little while. i am talking about statutes. once again you have given us information about references to some general language like the california constitution and other statutes which says that the right of privacy is important, and i don't think that anyone disagrees with that. >> i am looking for some express provision, in a statute that says this kind of

information is exempt. can you give me that? >> 6255 of the government code, which states that the agency shall justify withholding any record by demonstrating that on the facts of this particular case, which is why i was bringing up the mechanism by which we were addressing the complaint, and interest served by not disclosing the record, clearly out weighs the public record by the disclosure of the record. >> in other words, some sort of balancing test is done and a finding was made and a finding was made that there is some overriding interest that out weighs it, and you in your answers to me, said that you had not done that. you said that the person asking this information has not proven to you that he has some overriding cause, and you had the test flipped and so if you were relying upon that language you can't. >> well i apologize if i did not clearly communicate what the record clearly outlines which is from the beginning of this case, we have asserted

that the privacy rights involved, were basically we were invoking 6255 of the government code and asserting that the privacy involved, the rights involved, were paramount, and that is not the right word. but, that that was exactly what we did at each stage of this process. and i apologize if i didn't clearly state that. >> no. you didn't, you have not done anything wrong, you did say that. and i am not contradicting what you didn't say. you asserted that in the outset, privacy trumps it. >> yes. >> but from what we are seeing here, that is not enough to assert that generally privacy trumps it, you have to have carried your burden and demonstrated why you have an overriding governmental interest to keep this information private that trumps what this yes is asking for,

you have not done that. you have asserted that it is private and therefore we will not disclose it. that is not enough. that is just, that is just saying the language over and over again, but you have not demonstrated what it is that you have to demonstrate. >> are there other questions for miss ballard? or warren? >> miss ballard i do need the clarification on your policy. so, you started off by saying that the policy is, that you redact this type of information whenever you get a public record's request. ; is that correct?? >> and the city attorney's good government guide and the standing policy in the department, yes. >> is that policy articulated anywhere? >> in the good government guide. >> so you interpret the good government guide as providing that an agency should as a blanket rule redact the home address and telephone number

and all circumstances. >> no. it is a general rule, but obviously, when it has taken on a case by case basis, when an individual request comes in there is a conversation about you know, is this, is this relevant? is this important for the requestor to have? is there, what rights does someone assume, particularly for a minor? we have access to the information about you know most of the school kids in san francisco, and so there a question of what type of record it is, who the person is, what the question is. >> are the factors that you used to determine whether or not that information should be disclosed, articulated anywhere? >> no. it is just a general rule. >> who is involved in that decision making process? >> in your department.

>> and if it is necessary, brings in the supervisor, which is me. if she thinks that it is clear, she makes it? >> we get over 200 requests a year and so i am a little bit reluctant to say always, if there is a question, and if it is not, and if it is not a straight forward request, it is moved up the ladder for conversation. >> and did she consult the city attorney in this case? >> yes >> and the city attorney said that the records do not need to be disclosed or the information did not need to be disclosed?

>> yes. >> was that elevated to you? >> yes, we had throughout the record asserted the constitutional right to privacy and that ordinance task force had repeated that mr. maionchi and the task force has asked for the same information on multiple occasions, however, our response was that the facts of the situation had not changed, and so, just because someone asked three times does not mean that we are going to change our mind. >> did the city attorney provide a justification for why the information did not need to be disclosed? >> i believe that it was outlined in the record but from what we articulated. >> i understand the legal bases for wanting to withhold the information, what i am fully understanding from you is the factual basis is what you are well suited to provide.

i mean, what factors we want into the determination that this is not a unique situation in which the information should be disclosed. >> i think that primarily and i am going to try to navigate this without revealing too much personal information about the case in hand but primarily that the issue that mr. maionchi was attempting to shed light on was already being addressed there was a transfer of a birth from an existing owner who was delinquent on his rent, to a new ownership group. and essentially the existing owner tried to (inaudible) the new owners and sell him something and actually transfer the boat or the birth. through the work of our harbor master working with his ex-wife and the coast guard was able to

remedy that situation and the rightful owners got the boat and the lease and there was no money lost in the transaction. >> and so then, but for the fact that this was happening in as you characterized it as a separate proceedings, and would, or do you agree that the information of address and phone number were relevant? >> in this case, yes, if we had not already been working with, and we were working directly with the new ownership group, and who also happened to be number one on the wait list for a birth, so had this person actually left, which is what we were trying to do, or you know, kick him out for being in arears, and for however many months, this or the people that are in there now would have gotten in off of the wait list which is the standard process and however, yes, if we were not already knee deep in this investigation and in this process, i think that our approach would have been different in that there is an

interest in disclosing this information because there was some injustice to lack of a better word that could have been stopped. >> and what would that injustice have been? >> someone getting taken for hundreds of thousands of dollars and subveteringing our rules and regulations. >> how would the address and phone number potentially remedied that? >> i think that is a question for mr. maionchi. >> it sounds like you just conceded but for the separate proceeding it would have been relevant and i am trying to understand why. >> it could have been and this is a very, and this is a harbor that has 365 boats and most people know each other, and you could leave a note on a boat and there are a variety of ways to reach people in the era of google and facebook and all of those things, if we had not already been engaged in