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 a very diligent effort to right this wrong, we may have had a different conversation, i don't know the out come of that conversation, but our assertion of the privacy rights was bolstered by the fact that we felt that the alleged injustice was sort of in hand, if that

makes sense. >> and so... >> any other questions for miss ballard? or mr. warren? >> if i may, mr. chair, there have been a number of references to the city attorneys good government guide and the references have been on page 89 of our appendix. and the part relating to privacy and it gives, and it gives some examples but the document itself is an advisory document and it has no absolutely no force. and it is the attorney general on this and for the most part they are quite good, but it gives some examples for example, the authorities may protect, the private information from the records from the disclosures and for, if, based on the privacy example interest of individuals, for example, institution code section makes confidential records that

concern individuals who would receive certain public services and it is talking about the things that we know are considered to be by citizens confidential between them and the government. but it also goes on to talk about the fact that there is a high bar if you are going to not disclose the information and i just made the determination that it is private and he has not shown us anything different and he is going to have to show us something important. and so everything is flipped on its head leer. >> any other questions, or do you want to respond to that? >> i would like to point out that we don't just rely on the government guide we rely on the advice of the council and the other case law, and to interpret these things and

obviously i can't speak to all of that case law, and i am sure that the city attorney and may be able to do that and that is, to say that we placed the decision solely on a good government guide would be false. and it is based on a variety of factor and that is one of them and i am sure that white can elaborate on those much better than i could. >> i think that we are going to have a discussion of that case law. >> i have a question for the city attorney and others may as well. the memo refers to the administrative code 12 m2 a as defining the private information and the specific code stating that it should be protected >> sorry which page are you looking on? >> i am looking at administrative code 12 and 2 a.

but, frankly, i mean, if there are other provisions that would actually directly answer commissioner keane's question, i welcome your thoughts, it seemed like that was one relied on in the memo. >> sorry, let me just grab it. >> okay. >> i mean that i i think that former and also there is a line of case law that interprets it. >> but you understand that commissioner keane's point which i think is fairly clear in the statute is that it specifically states that it has got to be some statutory provision, doesn't it? >> express provision. >> on the statutory authority, yes. and an express provision. so, understanding that the case law is certainly relevant to

interpreting the statutes, what statutory provisions are being relied upon? >> i mean that it is says sas around 12 m2 a that the city does not disclose the private information unless it is specifically authorized to do so and i don't know if there is anything that is specifically or would have authorized the disclosure of this private information and in this context. >> can you refer us to some definition of private information which expressly includes addresses and phone numbers, which says that? >> the definition section. >> the information shall be any information that could be used to identify an individual, including without limitation, name, address, social security

number, medical information, financial information, date and location of birth, and names of relatives. >> but we have got the name of the person. we have got the names of all of the persons. >> but this includes... >> yes. right. >> so, if you are talking about in general you don't want to identify someone. and that is because of the privacy needs, but we have already identified it, the person by name, where is or where does it then follow that the rest of those things, such as address and phone number, are somehow protected expressly protected against the disclosure requirements of 6726? >> i mean, i will leave it to the city attorney... >> first of all, it is through the chair. >> sure. >> yeah. >> and so, i guess, you should

answer that question directly, but also you should express what your view is from the city attorney's department about whether this in fact should be disclosed or not, and i think that opinion should be useful as well. >> sure, but i am not totally sure that i understand your question and i mean that i think that private information is clearly defined here and so it includes home address and it includes the other contact information, and i mean that there is no dispute here that the names were released. so, i am not sure what you are asking about. >> am asking you to give me an express provision of a statute that exempts from disclosure the information required by 6726. and this information is required by 6726 and we start off with that. and we start off and so the burden then shifts to the government to show through some

express provision of either the california public records act or some other statute. that is the language. where this information is specifically exempt from the disclosure. >> right x i mean that other than what we have already discussed, i think that the, this is the kind of issue that courts analyze all of the time and i guess this is getting into commissioner hur's question in the context of the public records act requests whether the personal contact information such as address and phone number have to be disclosed. and if the sunshine ordinance makes reference to the public record, the public records act and the public records act explicitly states that pry viecy is important and it has to be respected and a long line of cases that analyze under what circumstances that personal information should be disclosed. and sort of the touch stone of that analysis and it is

referenced in the good government guide and it is also kind of discussed in detail and the recreation parks departments deputy city attorney about how that balancing works and you know... >> could i ask you about one of those cases in that long line of cases that we have laid out here >> sure. >> one of them which is heavily relied upon is the county of los angeles, verses los angeles county employee relations commission and there it had to do with protecting private information of two groups of people. one whistle blowers, and they are the main part of the case saying well, because of the need to protect whistle blowers, and their personal information, that should not be disclosed because there they had been a showing of the high government interest. and there was another group of people there, though, and which was mainly what the people asking for the information were

interested in. and that is people who were alleged to be wasting water. and there the court specifically said, them, sure you can have anything that you want on that. >> okay. and so how is it that these, or this or how is it that these particular people who have births, just because they have births are elevated to the position of higher regard that we have for protection of people like whistle blower, rather than just another group of people who may be wasting water and maybe the public should know about that. >> i think that the sort of bench mark analysis that the court and the city of san jose went through and i think that it is proper for the commission to go through here is whether the disclosure of the personal information, would serve the purpose of shedding light on an agency's performance of the statutory duties and that is

the standard that is referenced in the good government guide and so there has to be a balancing of whether the disclosure of the personal information would in any way serve the purpose of alum naturing what the agency's duties are and there is an example. >> and that balancing was not done here, from what, from what we have just heard. no balancing was done and it was private and that was the end of it. >> and i don't know want to speak on behalf of the rec and parks department and i think that when you read all of the e-mails to the complainant and you read the letter of the city attorney to the sunshine ordinance, task force, that it does go through that balance. and basically it says that you know, that there is, that there is no, that disclosing this information would not shed any light on any kind of government purpose, at all and i don't

think that, i didn't see any reference in the record to how disclosing this personal information would shed light on any sort of process as to how the government operates, and i think that the counter veiling effect that the or of the simply disclosing people's information to the public, you know, would have, and could have some effects for the reasons that were articulating this evening and so i don't, and i think that the case law makes clear that even though, you know, there is this presumption in favor of disclosure, there actually has to be some reason why disclosing personal information to the public would shed the light on the process. >> excuse me, you have once again just completely reversed the standard by putting a

burden upon the person who is entitled to the information under the government disclosure records to make some sort of showing on his part that is not the standard, the government has to show some sort of heavy reason why even in the light of this language, as to why it should be held confidential and i have not heard anything of that at all tonight and we have an admission that the information is relevant, to the dispute that this gentleman is involved with. so if it is relevant, he is trying to prove something relating to those births, and having to do with these birth owners and he now knows who they are. and he will probably want to talk to them, and invest gate them. to find out whatever information about those persons and those births. and you are depriving him of

the path of doing that, by not giving him the addresses or the phone numbers. >> i can't speak to this additional reason that i just heard about tonight and so i don't, i don't, the idea that the contact information is actually relevant to some sort of process, is something that i, you know, that i am hearing for the first time tonight, and i know that throughout this process, both first between the rec and park department and the complainant and before the task force, i did not hear anything to suggest that the contact information that was redacted actually played some sort of role in allowing the complainant to learn something that would have been relevant to any kind of request. or that it was not. >> now that you know that, does that change your mind?

>> in doing your balance test, do one for us in the interests that are involved, now that you know that it is relevant to this complainant in order to pursue, whatever address he wants to pursue, to have this information, doesn't that establish a substantial reason why, he is not supposed to show it, but you are supposed to show that he should not. could you do that balancing test for me as we speak. >> i am not sure that i understand the connection, i am not sure that i understand the connection between whatever this dispute was and why, or how that dispute brought in to some sort of relevance, the contact information, the need for that contact information. and because we can articulate that and thes hard to do the

balancing test and i think that it would go to, and i think that you would have to look at more precisely of what the dispute was and how that contact information, you know, played some role in that dispute in the public's need to actually have that information. and you know, the example provided in the good government guide which for example which i am sure that you have read is personal contact information might be relevant to shedding light on some government process. if the question is whether a person's home is located in sufficient proximity to the site of a decision and a governmental decision and i just have not heard and anything that would allow me to see that it was any relevance in shedding the light on the government process. >> mr. white, what is your view then as to whether the information based on all of the facts that are currently known

should be disclosed or not. >> it should not be disclosed in my view. and the redactoin is correct and the right in california is important and the way that the balancing test works is that there has to be something articulated by something in the record that speaks to how that contact information would shed some light on an agency's performance of its statutory duties and there is not a single case of which i am aware in which a court has come to a conclusion that if that contact information it has no relevance to that disclosure should occur and i think that this case is on all fours with that kind and with those cases. and again, i don't know that i

fully understand this, or what rec and park is saying with respect to this side process but just based on what i heard it still does not sound like, and what was needed by the complainant or what would have been helpful to the complainant to shed the light on the government purpose, was the contact information. and the name was provided, and based on the and what he needed to know is who else was on the wait list? and the other information that was provided on form to get on the wait list and i have not heard anything as to why those why it would have been relevant to him and illuminating to how the government process works.

with respect to commissioner keane's questioning is i would point to two explicit provision and one is the administrative code which is referenced before in terms whaf is private information and the city not being able to turnover that private information, which includes names, address, social security number, and i would say that disclosing the name does not act as a waiver with respect to the other types of information, because that would mean if you turnover somebody's name and you can turnover the social security number, which i think that we would all agree is probably not correct or not contemplated under any of these laws and so number one and number two i would say that the other provision is 6254 c, of the public records act which dis reference the disclosure and would constitute invasion

of personal privacy. >> isn't that rather general. >> i think that this is relevant. >> isn't that language, rather general? that you just said? >> i do think that that second language is general. but i do think that it is relevant as to your, as to the question of the burden. >> the relevant to that it be, and that that is an express provision of a statute? that exempts it from disclosure that general language that you just gave us? >> well, i would say, that it is a, express and also i would say that it is relevant and it is relevant because it points to case law that interprets the constitutional right to privacy. and this is relevant, with respect to your question, as to who has the burden, because our understanding is that once there is a constitutional right to privacy under a case law, that you look toward the supreme court and the california supreme court and the other cases which you cited were appellant courts.

but the california supreme court has said that when you are talking about an invasion of privacy and i will quote, the courts have frequently recognized that individuals have a substantial interest in the privacy of their own home and this is also, reasonable the court said and it is also serious when that information is turned over. and so at that point, once you have established that expectation and that reasonable expectation of privacy, it says that we next consider whether the invasion of privacy is justified because it would further a substantial counter veiling interest, invasion of privacy interest is not a violation of the state constitutional right to privacy. if the invasion is justified by a competing interest. and so, in other words, the justification, has to come from the competing interest, and not the other way around and in this case, if that competing interest has does have something do to with with respect to how the government

is performing its duties and i would say yes, and i would say yes, that is a relevant, competing interest. and now we do have to say that, it is for the first time tonight that we hear that there is some other, there is this, you know, this other issue in terms of the birth and the improper and it is a transfer of the birth and however, to the ex-at extent that is a private interest and someone wants to sue somebody or they feel like they were wronged and that i believe would be distinct from an interest in how the government is performing its duty. and so, i would suggest that in this case, that is the burden that we have to see, whether you know the person, or the complainant, carried. >> and so you see it as the complainant, if the complainant makes no showing of a nexus you don't think that it is up to the city and the park and rec department to do any sort of balancing you think that they

can say there is no, no showing, and so, >> i do think that the balance sheet. >> and the policy only to not disclose. >> the assessment as to whether a privacy interest is implicated and does the department have to do that, even if the complainant does not bring forward any initial showing. >> any other questions for the city attorney? >> and the public comment? >> david pilpal and i know that i have three minutes but i want to explain my perspective and perhaps, how the task force addressed this and to the new members, a member of the sunshine task force, welcome. i think that the two issues here, which the staff laid out, and i think that in a pretty

clear way and if i may disagree in part with the analysis and the conclusion is whether there was a violation of the ordinance and if so, whether it was willful and then the second is, is mr. ginsburg, the correct, actor and did, tack force follow the correct procedures to bring them before you and just to summarize, i think that as to the first, i believe that it was a violation of the ordinance and i don't believe that violation was willful and as the staff probably heard at some length going to the task force meetings and i believe that the advice of the city attorney should be given weight by the department. and it is clearly their legal advice, that determination of the task force also should be considered by the department, and when a department is getting conflicting advice from the city attorney, and

information from the task force, the department has to choose, which path to go, and clearly there are consequences but it does not appear to me that that makes a violation by itself, willful in character. and as to the second part, i'm not sure quite frankly, if mr. ginsburg is the right actor and if the task force got to him, correctly. we asked and again, the staff i am sure heard this, on the tape. i pressed the point very clearly with miss gong as to who made the determination not to disclose and she said, at least once, probably two or three times in response to my questioning, that was a decision of the department and i said, well, who made that decision? >> well, it is the department's decision. >> well, it didn't get me any closer to whether it was her decision, miss ballard or his and the somewhere in between and i thank you for the questions so far particularly

about the escalation and the other laws that are implicated and if i could discuss a little more, i hope that this is helpful. i would note in part that miss ballard said earlier that they did use a 6255 balance test. and 6724 gand i, clearly states that the city can't use the balancing test or anything similar to make that determination and to the extent that she has already conceded that they did that and that they conceded an element of violation. and i wanted also to mention that as to... >> your time is up. >> and if the people have questions for you after the public comment, they can raise them >> if you have questions i wanted to discuss 12 m, and contracts and birthing agreements as related to the

wait list. so if someone has a question i am happy to. >> and we will take them after the public comments. >> okay. >> commissioners ray hartz, director of san francisco open government and i understand that the deputy city attorney is not wishing to bite the hand that feeds him. i find it rather ironic because when i filed a sunshine ordinance complaint against the city attorney, mr. herrera i specifically asked for anonymity on the form which is under the law is required and got the task force got a letter from him disclosing my name my address and my e-mail address and my telephone number and making the statement that it was luticris to ask for anonymity because everyone involved knew that it was me, so to, you know wh, it comes to his own efforts he really does not walk the walk. george orwel said in a time of disseat, telling truth is the revolutionary act and i want to exempt two members of this commission from the following