September 10, 2007

Approval of minutes of August 8, 2007.

Speakers: Allen Grossman said that he did not believe that the notice requirement for this special meeting was met, and therefore the meeting should not continue. He said that he had asked Linda Wong for Order of Determination letters in August, but did not receive them until Friday, September 7.

Chair Knee said that verbal notice of today's meeting was given during the last two CAC and Task Force meetings.

Motion to approve minutes of July 11, 2007. (Comstock / Craven )

Ayes: Knee, Comstock, Craven

Absent: Pilpel

Excused: Wolfe

Discussion re streaming audio and video possibilities from the City Hall hearing rooms.

Rohan Lane, City Hall Media Services, gave an overview of the current service and reported that Media Services is experimenting with audio recording on personal computers, which can be done at minimal cost. He said that he was not clear on the Task Force's expectations.

Member Craven said the Task Force is exploring the feasibility of digital recording and its cost. Mr. Lane responded that rooms 250, 263, 400, and 416 could record audio and video, but that room 406 and 408 accommodate audio recording only. He said the cost would depend on the type of recording required.

Chair Knee asked if it is possible to provide live streaming? Mr. Lane responded live streaming was not available at this time, and that SFGTV would need to be consulted. He estimated the cost to be approximately $30-40K annually to provide the service.

Member Comstock said there appear to be three options: audio only, audio and video, and video only. Mr. Lane agreed and said he could give a presentation at the next CAC meeting.

Speakers: Kimo Crossman suggested that the clerk use portable digital recorders immediately, that the City get a quote on the cost of streaming audio-video, and that the Task Force send a group to San Jose to look at that city's system.

No action taken.

07040 & 07042

Progress report regarding speaker assignment process: Order of Determination in re Dr. Ahimsha Sumchai and Francisco Da Costa vs. Chair Sophie Maxwell of the Board of Supervisors' Land Use & Economic Development Committee.

Member Comstock recused himself.

The Administrator reported that Dr. Sumchai said she could not attend today's hearing.

Speakers: Jon Lau, aide to Supervisor Maxwell, said the Supervisor complies with all requirements of the Ordinance with regard to public speakers. He said that if there is an overall need affecting the entire Board, he would gladly convey the message.

Chair Knee asked if Supervisor Maxwell had developed written guidelines. Mr. Lau responded that he was not aware of any.

Kimo Crossman suggested that the matter be continued because Mr. Lau is not knowledgeable on the matter, that Supervisor Maxwell's office be held accountable to its commitment, and that a written response from her office be requested.

Chair Knee reminded Mr. Lau that Sunshine Ordinance Section 67.21(e) requires that respondents be knowledgeable.

Continued without objection.

07052

Hearing on the status of the August 28, 2007, Order of Determination in re Allen Grossman and Wayne Lanier vs. the San Francisco District Attorney's Office.

Speakers: Allen Grossman, Complainant, said that he is convinced that the DA has no formal written procedure regarding the backup and storage of electronic records. He said that the GRM Information Management Services purchase order refers to paper documents and not electronic records. Paul Henderson and Sandip Patel, Respondents, said they don't have a written policy and that to address the issue on timeliness, the DA has hired a full-time person to respond to requests.

Mr. Grossman in rebuttal said he agrees that there is no written policy but there is something that may be retained with the DA's information technology department; that the DA hasn't addressed what is being implemented.

Member Pilpel asked for the name of the DA's IT manager and whether the complainants were notified that there were not responsive records. Mr. Henderson responded that Voltaire Almendrala is the IT manager, and said the Complainants were notified. Mr. Patel said there is a policy in the contract, which the DA does not have.

Chair Knee asked if the DA couldn't provide a copy of the contract to the Complainants. Mr. Patel responded that the DA does not have the contract, but pursuant to the Ordinance referred them to the appropriate agency.

Member Comstock said that although there is some progress and effort by the DA to rectify the problem, problems remain, and the DA should write a policy and report back to the Committee.

Mr. Patel asked what they should prepare for the next meeting. Member Craven cited the language in the Order of Determination.

Mr. Patel said that pursuant to California Government Code Section 6252 (e) and Sunshine Ordinance Section 67.21(L), the DA's position is that the office is not required to create a policy and that a policy will be created at a later date.

Member Pilpel asked the Complainants what could be done to satisfy the request. Mr. Grossman responded that the DA does not have to create a policy to satisfy his request; that the GRM purchase order refers only to hard copy. Mr. Lanier responded that he would like to see the contract and have a commitment from the DA to create a policy. Mr. Henderson responded that he would try to find the section in the contract and provide it to the complainants.

Member Pilpel identified three specifics: 1) that the Task Force receive a copy of the correspondence that went to the Complainants, 2) a copy of the GRM contract regarding electronic document storage, and 3) a policy from the DA governing the backup and storage of electronic records.

Member Craven cited Sections 67.29-1 and 67.29-7 and said that the DA is required to preserve records in accordance with their retention schedule and believes that the DA should attempt to create a written policy.

Public speaker: Kimo Crossman said the Order of Determination (OD) does not give a 5-day response time to the Department, as it should. He said that if the DA does not comply with the OD, the matter should be referred to the Ethics Commission; that the DA should provide a written policy.

Chair Knee, in accordance with Committee consensus, said he will write to the DA, asking the office to describe its retention policy, how employees are informed of the policy and how the policy is implemented.

Continued without objection.

The Chair declared a 5-minute recess.

07055

Hearing on the status of the August 28, 2007, Order of Determination in re Kimo Crossman vs. the District Attorney.

Speakers: Kimo Crossman, Complainant, said the DA is difficult to work with, and asked that the Order of Determination (OD) require that the office provide a written response to the OD in 5 days. He asked that any request for reconsideration be denied. Sandip Patel, Respondent, said a description of the policy was provided to Mr. Crossman and that the office is in compliance with the OD. Mr. Crossman, in rebuttal, said he assumed that since the DA did not mention a request for reconsideration of the OD, it had been withdrawn.

Member Craven said that under Section 67.21 (e) of the Ordinance, the 5-day requirement language applies if there is something for the Respondent to do. She said she doesn't see any need for further action.

Member Pilpel said the Order of Determination needs to be submitted more promptly, so that parties have more time to review it prior to the meeting.

Mr. Henderson rescinded the DA's request for reconsideration of the OD.

No action taken.

07057

Hearing on the status of the August 28, 2007, Order of Determination in re Jeff Ente vs. Supervisor Aaron Peskin.

Member Comstock recused himself.

Speakers: Jeff Ente, Complainant, said he did not receive any new update or information. Supervisor Peskin's aide David Noyola, Respondent, said that the office has responded fully to the request and has no responsive records.

Mr. Ente, in rebuttal, said Supervisor Peskin's statement suggested that there were more than two e-mails, and he wants to know how to reconcile the statement. He said that what's in the records is not consistent with his statement.

Member Pilpel asked if representatives of Department of Telecommunications and Information Services and the Information Technology Manager were present.

The Administrator responded that he is the department's IT Manager and said that DTIS maintains and backs up the e-mail server daily. He said the IT staff provides only administrative support for departmental staffs' e-mail. He said e-mails are kept on the server and not on individual drives. He said it is possible for staff to archive e-mails to the local drive, though it is not a common practice.

Member Pilpel suggested that the Department explore turning over to the Clerk of the Board any records pertaining to Board legislation for retention and maintenance. Mr. Noyola responded that he would explore that possibility.

Member Craven asked Mr. Noyola to also explore methods and options for complying with the COB's current retention policy.

Chair Knee asked if an attempt was made to retrieve the deleted e-mail. Mr. Noyola responded no. Chair Knee suggested he ask DTIS to attempt a recovery of the e-mails, and to develop written procedures to comply with Section 67.29 of the Ordinance.

Member Craven said DTIS should be required to search for certain e-mails with the word "parrot" between certain dates.

Member Pilpel suggested that the matter be continued.

Public speakers: Kimo Crossman that Mr. Darby should be responsible for retrieving the e-mail, not the Board president, since he is the IT Manager, and should work on a process for preserving e-mails. He said the COB's policy of printing e-mail for presentation is not a good policy; that a representative of DTIS should have attended and that a letter should be sent to them.

Wayne Lanier said Supervisor Peskin is responsible for the care of the electronic records; that a request was made to DTIS but there was no response.

Michael Reed said Supervisor Peskin indicated at the Board meeting that other Supervisors had received similar e-mails, so a request could be made to other Board members' offices.

Member Craven asked Mr. Ente about the timeframe for the records being requested so that DTIS could be provided the search parameters. Mr. Ente responded that the matter was introduced April 10 and the statement was made June 5.

Motion authorizing Chair Knee to write a letter to Supervisor Peskin's office asking him to instruct DTIS to retrieve and produce e-mails between April 10 through June 5, containing the word "parrot" and to develop written polices regarding the retention of correspondence pertaining to legislation, and to report back at the next meeting. (Craven / Pilpel)

Ayes: Knee, Craven, Pilpel

Recused: Comstock

Excused: Wolfe

Member Craven, suggested that the Clerk of the Board and DTIS be carbon copied in the letter, without objection.

Continued, without objection.

07059

Hearing on the status of the August 28, 2007, Order of Determination of Paul Graham vs. the San Francisco Fire Department.

Speakers: Rhab Boughn, Respondent, said that since he did not attend the prior meeting he needed an explanation of the violation determined by the Task Force; that he needed to know what records the Department needed to provide. He said certain records are not disclosable under the federal Health Information Portability and Accountability Act; that certain information requested by Mr. Graham could not be extracted without violating HIPAA, specifically the payment information. He said Mr. Graham was provided a list of dispatches to the address, the amount that is charged, and a 6-month summary of the ambulance billing. He suggested that other forms of billing statements, which might be helpful, are the monthly payment by date of service, monthly aging reports, and a 6-month summary that goes back to July 2004.

Member Craven informed Mr. Boughn that HIPAA was not applicable and did not preclude disclosure. She said the main request was for billing information pertaining to the cost of the Fire Department visits to the facility and how much had be compensated or returned to the Department. She asked Mr. Boughn to speak with the third-party billing company to find out if a report can be generated with the address without any information that identifies the patient, and then provide the aggregate amount billed for services to the center and the aggregate amount collected to date for those services.

Member Pilpel asked to see the spreadsheet of dispatches containing redacted information. Mr. Boughn said that he did not have it with him. Member Pilpel said there were five bits of information that he believes Mr. Graham was looking for: 1) the start date, 2) the end date for the 6-month period, 3) the total number of incidents, 4) the aggregate billed amount, and 5) the aggregate amount of funds received.

Mr. Boughn said he will research and see what information can be abstracted.

Public speaker: Kimo Crossman, said HIPAA doesn't apply to public records, only federal records; that the California Supreme Court ruled that employee salaries are not exempt from disclosure because the public's expense overruled the privacy provisions in the CPRA. He said Peter Warfield is to be represented against the library on a similar matter regarding information on repetitive stress injuries. He said private interest has to be balanced with public interest.

Chair Knee noted that the Complainant was absent.

Note: After the meeting the Administrator retrieved a voice message from Mr. Graham, who indicated that he just became aware of the meeting and could not attend.

Continued without objection.

Chair Knee informed Members that DCA Sanchez had to leave and asked if they wanted to discuss item #8 in her absence. Member Craven asked to be excused from the October meeting and said she will submit her comments on the provisions that will be considered for inclusion in the packet. She said that she is prepared to discuss item #8. Member Pilpel said he was prepared to discuss item #8.

Possible amendments to Sections 67.30 to 67.35 of the Sunshine Ordinance and subsequent sections as time permits. (discussion and possible action item) (attachment)

Sec 67.30 The Sunshine Ordinance Task Force.

Sec 67.31 Responsibility for Administration.

Sec 67.32 Provision of Services to other Agencies; Sunshine Required.

Sec 67.33 Department Head Declaration.

Sec 67.34 Willful Failure Shall Be Official Misconduct.

Sec 67.35 Enforcement Provisions.

Sec 67.36 Sunshine Ordinance Supercedes Other Local Laws.

Sec 67.37 Severability.

Member Craven said the CAC has already discussed Sections 67.30-67.33 so they can begin with Sections 67.34.

Member Pilpel asked to start discussions on Section 67.32 since he was not present at the last meeting.

Member Knee, by consensus, started the discussion on Section 67.32.

Speakers: None

Section 67.32 was discussed and the Administrator recorded recommended amendments.

Administrator's report.

The Administrator made the report

Member Craven asked the Administrator ensure that the telephone is tested and working properly for the anonymous person prior to the next regular meeting of the full Task Force, and to consider meeting in another room where there is a working 2-way telephone.

Chair Knee asked the Administrator to schedule discussion Patrick Monette-Shaw's Order of Determination status at the next CAC meeting. Member Comstock responded that he has scheduling it for the September 25 full Task Force meeting. Chair Knee said there will be no need to schedule it for the CAC if it is resolved at the full Task Force.

Speakers: None

Public comment on items not listed on the agenda.

Public speakers: Kimo Crossman said that the special CAC meeting was not in order since it was not noticed in the newspaper.

Chair Knee asked the Administrator if notice of the meeting was placed in the newspaper. The Administrator said that notice was not placed in the newspaper; that notice was placed on the Task Force website, the Library and on the bulletin board outside the meeting room.

Member Pilpel said notice in the newspaper is not required.

DCA Sanchez said DCA Llorente researched the matter thoroughly and informed her that the meeting was properly noticed.

Allen Grossman said today's CAC meeting was not intended to be a special meeting. He doesn't believe adequate notice was given and if the City Attorney has a formal opinion, he wants to see it.

Announcements, questions and future agenda items from CAC members.

Member Pilpel reminded members that a discussion is to be agendized at the full Task Force meeting regarding the name of the Task Force and to include any research from DCA Llorente. He said the Alioto-Pier legislation was also continued.

Member Comstock said he met with Clerk of the Board Angela Calvillo and saw the notice for the Task Force Executive Secretary, and it will take a month to go through the list of applicants. He said there will be a committee of three that that includes himself, a representative of HRC and a third person named Clift who will screen them and then submit names to Angela Calvillo for interviews. He said it would take about 6 weeks for the selection and start-up process.

Adjournment The meeting was adjourned at 8:17 p.m.

This meeting has been audio recorded and is on file in the office of the Sunshine Ordinance Task Force