the hearing was on that list and it was his belief that somebody, a person that they referenced, had done an illegal deal, to get a space when they were on the list lower than him. and he wanted to find out whether the department had allowed that and whether they were making any effort to look into it, and he have found out that they were not, and they have not until this case came up. >> other public comment? >> are there any questions for either mr. hartz or mr. pilpal? >> i have some for mr. pilpal. >> you have mentioned briefly that there is no, and that it would have been a violation to do a balancing test under 6255 a? >> yes. >> why do you say that? >> 67.24 g specifically says and you have this in your memo

and in the law that neither the city or any office or employee may assert 6255 or similar provisions for withholding any documents or information requested under this ordinance, and it has a similar provision. in 6424 i, i and could expand on that a little bit. page eight of the memo, for example, in the other places. >> okay. >> and i do believe however, that where there is a privacy interest, either asserted or recognized, that there is a need for a privacy balancing, which i would not consider a 6255. balancing, but i think has in some ways, similar interests. or similar factors to be considered. and i'm fairly familiar with the case law, and in my

opinion, the case law is not great, or particularly on point about this. and i think that the... >> let's back up and as far as my question, so, you know, the staff, and the city attorney have appointed us to the administrative code 12 and in 2 a which does appear to be to me at least a statute that is specifically provides the right for the information that was redacted here, >> except for two things, this is the first time that i have heard 12 m raised in the context of sunshine and i am certainly aware tf and it was a voter passed measure sxets. and i would point you to section, 67.26 of the ordinance, and the sunshine ordinance supercedes other local laws and the provisions of the sunshine ordinance supercede other laws and whenever a conflict in the local law is identified and the require thament would result in the greater public access to the public information shall

apply, i understand the analysis that the staff provided and particularly, and later in acted more specific provisions and generally the government, except for that particular provision in the sunshine ordinance, which i think pretty clearly says that the sunshine trumps with respect to other local laws. and now, with respect to the state law or the starter, but with respect to the other laws and i would include... >> and so what you are saying the view that there should be privacy balancing on. >> the just as there are considerations, such as the americans with disabilities act and other kinds of laws, that we have to sort of interpret into the statutes when they are not clearly stated, a privacy interest is strong and compelling, however it is not absolute. and just as courts and in my understanding have attempted to

balance or reconcile these issues, they don't all go one way or the other. and what i was, i was about to say earlier is that the case law that i am familiar with, the san jose case and the teamsters or the priceless case, and this la case is new, so i am going to have to read it carefully, but, some of the federal cases, are really much more about employees contact information, and whistle blowers and from my understanding there really is not a good case, or even a line of cases on a general public interest in disclosure or non-disclosure of the personal contact information, it is really specific to those kinds of issues and so, i think that it is, it is an area of law that is unclear. at this point and i think that then, we all have to weigh on particular facts and circumstances, whether you know, whether that privacy

interest, is greater than the general public interest in disclosure, and i think that was what commissioner keane was getting at. >> and any other questions for mr. pilpal? >> no. >> thank you. >> i am here if there is anything further. thanks. >> commissioners? >> comments? any points? >> from my view, i do think that 12 m has amrikbility here although i am not sure that we need to reach the conclusion or the decision about whether it provides the privacy rights that it contemplated in 6727.

here i think that my primary concern is that there does not appear... and whether or not, whoever burden it was and it sounds like we, the commission and perhaps even the city attorney, believe that the park and rec department have some responsibility to weigh the privacy interest against the need for the information, and it does not sound like that happened at all to the contrary, there seems to have been a concession that the information was relevant, which suggests to me that, perhaps the information should have been disclosed at a minimum, i think that the complainant is entitled to know the reason, to know the result of the balancing analysis, whether that would have been in the e-mail from miss gong or in a letter of some sort, and if there is a balancing that needs

to be done, i mean that it clearly has not happened here. but i welcome thoughts of the staff or the other commissioners of the city attorney. >> okay. >> commissioner keane? >> i agree with the chair. and in terms of your conclusion. i would go one step further though, and say at this point, the record shows that this is material that should be disclosed under the mandatory disclosure provisions that we have. and it was not.

and it loses and ten we move to the point that the chair made in regard to the fundamental rights of privacy, if that was the concern, and i don't know from what they are saying, and if we are looking at this in terms of protecting, and i don't think that this information is rises to that level, and then i agree with the chair and then at that point, let's see the balancing and what is the public interest that is so significant here? that trumps the requirement of the disclosure? and we don't have that? and so, i would, say that at

this point, they were getting the information from the city attorney and the other people and not doing anything willful but they violated this disclosure provision and that should be our one finding tonight and it should be that the park and rec violated the disclosure provision and that they are under the obligation to give this information and i think that is as far as we need to go and i don't think that we have to deal with which party or whether or not he was provided with due process by being added later on. and i think that if we get into that, we are getting into the weeds of something that, are not, and it is just not necessary. >> commissioner andrews?

>> so, i wanted to see if we could play it out a little bit and it would be all be hypothetical. and so, let's say the names were given and the address. and that the information was given, name address, and phone number. and i am looking at page, under and i am looking under 14 and page eight, and the top of the page eight and number four, and appendix a. >> and the recommendation and the report and the recommendation. >> okay. >> and let's say that all five were handed out and then someone decided that they wanted to file a suit, and a privacy lawsuit and said that the park and rec gave up my information that was a

violation of my privacy rights. how do you play that out and i am not an attorney but i would like to hear the attorneys talk about this stuff and so, really... >> leave me alone. >> yeah. >> and so you have a perverse curiosity. >> i have heard that on occasion and so the lawsuit is filed by one or all five of them and let's say that you have given out my information and it was implied, may not have it as a written policy, but that you do not give out the information, but it is implied that it is private until it is not private. and the lawsuit is filed. would that lawsuit have any standing? >> sure, i mean legally speaking standing means that you have been injured by the conduct and so i think that if you had, you know, there was a private right of action for violation of your right to

privacy under the california constitution and so the argument would have basically been along the same things as what we have been discussing tonight. and whether you had a reasonable expectation of privacy and how you were harmed by the disclosure of the information, and what the government's interest was in actually, disclosing that information and because the case dos make it clear that if the individual is the holder of the right to privacy and not the government and so i think that the success of that claim would have turned on whether there actually was, or whether there was a government interest here for disclosing the information, and not just a government interest, but one that whether the government interest or whether the disclosure of the information served an actual government at purpose and as the staff pointed out and not simply some private purpose, and along the

lines of a dispute between private parties and i think that the case law that would apply is the case law interpreting the california constitution and i don't think that it would matter at all whether the sunshine ordinance did or did not authorize the disclosure and i think that if there was a violation of the california constitution, that would obviously trump any kind of analysis under the sunshine ordinance. >> well, except that the... and i mean, that the parks and rec may say, we didn't agree that it should be disclosed but because the ethics commission found a violation of the sunshine ordinance and therefore, ordered us to disclose. >> oh, at this point, you mean, after, >> right. >> and that is what he is asking, i mean if we were to say that this should be disclosed, publicly, and the violation of the sunshine ordinance, and but, we don't want to address the issue of well, do we even have the

proper party and are we vulnerable to the subsequent litigation to where the parks department says that we turn it over as to what the ethic's commission did. >> and then my follow up would be, is that active conversation that you had at parks and rec which is that we really need to talk about the privacy of our, of the people that we do business with. >> and thank you, commissioner. >> to the chair, yes, i wanted to address that and something both the president of the commission and commission keane brought up about the balancing test that we did do and it is outlined in the december 19th letter in great detail, i believe and still i refer to you that and in response to your question, yes, we did have the conversation absolutely of if we reveal this information, what claims might these people be able to make against us and is there or what harm could be done there? >> and so that was exactly the part of the conversation that we had and obviously, conducted

with our lawyers about, who asserted as i believe they have today, that the constitutional right to privacy trumps not the government code or the sunshine ordinance but the constitutional right to privacy is what we relied on to make this determination. >> i will say that it is a big record, you know, we look at this stuff and for you to first come up and say that you didn't do a balancing test and then say that the information was relevant, and now, say that you did do a balancing test is kind of hard for us to deal with, i mean that it makes it really tough to adjudicate matters when you say things that are conflicting. >> and that is where i am, i am a little, i am stumped because if there was, something that was going to happen that would negatively impact the department and the business of the department, and this high threshold that they say, and it is an active dispute and would

that mean anything to you if they said, well, we were managing risk here and we were managing the potential liability and there was an active dispute and there were very, and these are, well, both the individuals who protect, and need to protect everybody's privacy needs to be protected and this is a relationship that we have them. >> and through the chair with all due respect, i don't think that us, we as an ethics commission, are the ones who have to pass on whether or not the park and recdepartment is trying to protect itself from liability. and that is not our purview, our purview is that we have certain requirements of public transparency, and disclosure of governmental information and we see it in the statutes like the sunshine ordinance, and it is, and if it is not complied with, we have to make the call ethically that it should have

been complied with and in regard to going beyond that and saying, well, you know, they can get sued and they could have some problems. i don't think that is our concern. or should it be because that would really, that makes us some sort of super protecter of city departments. no. we have to look at what the ethical requirements are here. and relating to disclosure and just call the balls and strikes as we see them. and was it done or wasn't it? >> and i think that is a fair point and i would say that to me the flip side is you are right it is not a matter of whether we will be subject to litigation, but the reason for that. and if, you know, to me, if we don't have the proper party, that is the balls and strikes issue. and i think that we ignore the balls and strikes if we don't address it and look past it and because we think that, you know, as but that is a

procedural issue not a subnative one. >> if i may just to address your earlier comment, i apologize if i, confused people with the response to a question. and what i intended to layout and what i thought that i had layed out and what is laid out in the record, was that we all have these conversations that you are discussing, and that both the balancing test and the flip side of it were factors that went into the decision making and i am not sure where i got wires crossed there. >> yeah, it was pretty explicitly crossed. but i did read this letter, and what you say about it, is that the public interest and protecting the individual privacy by the non-disclosure and the private residents and the information and clearly out weighs the public interest, and which as far as we can tell is nil and served by the

complainant and received such information and that is not and that is not really an analysis and in light of what you subsequently said that it would have been relevant but for this other investigation, i mean that to me is... new information that is very important to this decision in which clearly was not considered in this letter. so, you can see, you can see at least, what my concern is. and i feel like the balancing and the staff and the at the attorney needs to be done when we evaluate this and we did not consider the information that you tonight have told us. >> and i could have used the word could and actually was part of that balancing test that it was not revealed during the disclose and the record as you have it in front of you. and the information that we were attempting to reveal about the people's personal

situations. and on some of these, and thanks. >> and the task force did not have all of the information before us, and we only had miss gong at the hearings and we did not have miss ballard or mr. moren and some of this information might have changed some of our discussions, i don't know. but it might have. but i also wanted to point out that this privacy balancing, or interest, in my view, and i think that in the view of the courts, is not absolute and that is why it really is, a sort of balancing, and i think that it was incorrectly stated earlier that the birth holders, don't have their information released in fact, they do. you don't have before you on the record, maybe mr. warren has with him, the actual agreement to lease space, it is a lease, it is a contract, it is a real property transaction between the city and the birth holder and it says that the

bottom that any private information, provided will be subject to disclosure, it is absolutely a 57.24 contract, what is at issue here is the contract information for people on the wait list who are not yet birth holders, and i think that they are in that gray area of whether their reasonable expectation of privacy is higher or lower under those circumstances. but, for the fact that there is not yet, a birth available, they would be a birth holder with all of their information subject to the disclosure just as if you were were leasing space with the city for some other purpose and so i think that in this case, the privatecy interest and that is why the task force came to the conclusion that the disclosure was warranted >> and i could just make one, and i am sorry >> go ahead. >> and i just want to make one other point about the balancing test and i wanted to just look back through the case law,

before i made it and which is this is a legal balancing test. for the commission to make and i mean that the commission looks at or a court, if this were a court, looks at what the facts are with respect to whether or not disclosure would illuminate some processes of the government, and on the one hand, on the other hand, and whether it would, and what the intrusion of the privacy would be on the other hand, but it is not, and based on that, the court or the commission here, conducts that balancing test and i don't know that it is a question of, for example, within the rec and park department in their dialogue with the city attorney's office, what did that balancing actually look like, or whether it occurred,. >> so you are saying in the first instance, we should on a new record, make a determination, as to whether

the interests out weigh the right of privacy, based on the testimony that we have heard today? >> i think that based on the facts that you have in the record and based on the testimony, it is for the commission to conduct the balancing test, it is not to, it is not to ask whether or not internally, what about the rec park department balancing look like? and i think that for example, you could look to whether, you know, what miss ballard articulated about this parallel process that was going on. and whether that is a sort of evidence that speaks to whether disclosure of this personal information would illuminate some internal process of the government and on the other hand you are able to look at what just from your own experience and what the seriousness of the disclosure, would mean for the privacy rights of the people on the

birth list, and you know, for example, to use a different example, if you were evaluating whether to disclose the psychiatric records that contained personal information that would be a very, and a much more significant intrusion into a person's privacy than simply address or information and i think that the balancing is no the commission to do. >> you gave mr. pilpal additional public comment, may i have the same? >> no. >> does anyone have questions for mr. hartz. >> he was not asked a question and he just simply came up and started talking, if you are going to give him the additional time and then i am entitled to the additional time and i think that you know that. >> let me finish this line of questioning and then i will give you the additional time and i wanted also, and unless

the others have the questions on this particular topic, and the standing issue, and can i hear from the staff and the city attorney on that point? >> i think that there are two questions and i think that one question is was it a due process violation for the sunshine ordinance task force to refer a willful violation by mr. ginsburg to the ethics commission even though he was not named as a respondent below? and i think that is one question. and i think that the second question, is assuming that there was no due process violation, and whether or whether there is or whether there is enough to find a willful violation based on the state of the evidence as to

whether he knew anything about this disclosure, or whether as a department, head, he is responsible for decisions to disclose that come before his department. >> i think that i am with you. and can we based on the referral, find a non-willful violation? >> in other words, it was... >> even though it is for a willful violation. >> i think so and i think that it is contemplated in chapter three where it says and i can find you the specific reference. >> okay. >> do you want to... speak? >> i believe that is one of the options before the commission. >> and while, mr. chair, while he is looking for that. >> yeah. >> and you found it? >> yes. >> go ahead. >> right, so within chapter three, which deals with alleged

willful violations by the department heads, section 2, or 3 b, and 2, or sorry, 3 b 3, basically, sets out the options for the commission and you could find a willful violation and a non-willful violation or no violation at all. >> mr. king. >> if we were to go ahead and just make a finding that the department of park and rec violated the sunshine ordinance, and did not say anything about anything being done willfully, and did not say anything about mr. ginsburg, and didn't get into anything relating to whether his due process rights were violated or not, wouldn't that moot out all of this other stuff that we just, and we get to the heart of the question? of did the department of park and rec, violate the sunshine

ordinance by not turning their stuff over? i think that is otherwise, we are going off into all sorts of things, standing of mr. ginsburg and due process of mr. ginsburg, why would we bother to go there? >> i think that the... >> if we are not going to do anything to him and not having any finding of willfulness, why would we need to get into a big discussion about that? >> well, i mean, i think that the preliminary question before the commission is whether he personally engaged in a violation of the ordinance, willful or non-willful and so i think that that is something, that is a question that is squarely before the commission. >> do we have to answer that? i mean, that is not preliminarily to a conclusion as to whether or not the ordinance was violated? >> and anything about mr. ginsburg. >> and i think that, not not connected in that way. >> maybe another way of

phrasing what you are asking me, is can you not address whether mr. ginsburg violated the sunshine ordinance but instead, come to some conclusion about whether miss gong. >> and i don't think that we need to person allies this and i think that it comes from a department, and that is if we make a decision that they failed to take an action. >> it is all written in the language >> and we have to nail someone up there to the cross in order to go ahead and decide this question? >> we have to have a body to execute? >> i can only tell you what the sunshine ordinance says and i don't think that there is anything in it to suggest that a department as a whole is or can violate it, and i think

that decisions are, and i mean that perhaps the decision could be made by more than one person and in which case, those people could be named as complainants but i don't and it doesn't, i don't think that it is, and i don't think that it is proper not to address the question of whether mr. ginsburg violated the sunshine ordinance, but instead, speak on a different question. >> because that is not what the... >> the question of whether or not the ordinance has been violated, is not a different question. and that is the main thing that we have been talking about for the last hour and a half or so. >> but the... and but the... i mean the referral before the ethics commission from the sunshine ordinance task force is as a willful violation by mr. ginsburg. >> and here is why it matters, i think, at least arguably, is a willful violation