January 6, 2009 - special

Seat 1

Erica Craven (Vice Chair)

Seat 8

Kristin Chu (Chair)

Seat 2

Richard Knee

Seat 9

Hanley Chan

Seat 3

Sue Cauthen

Seat 10

Nick Goldman

Seat 4

(Vacant)

Seat 11

Marjorie Ann Williams

Seat 5

Allyson Washburn

Seat 6

James Knoebber

Ex-officio

Angela Calvillo

Seat 7

Doyle Johnson

Ex-officio

Richard Sklar

1.

08051

Determination of jurisdiction on complaint filed by Paul Horcher against the Planning Department for being denied access to files.

Motion to find jurisdiction ( Goldman / Cauthen )

Public Comment: None

On the motion:

Ayes: Craven, Knee, Cauthen, Washburn, Knoebber, Johnson, Goldman, Chu

Excused: Williams

Absent: Chan

2.

08051

Public hearing on complaint filed by Paul Horcher against the Planning Department for being denied access to files.

Complainant Paul Horcher said his clients include businesses that have run afoul of the Planning Department and that he has been before the Board of Appeals many times. He said he approached the Planning Department around July 24, 2008, and asked to see a client's file because the appeals board takes the issue of recent complaints against an appellant very seriously. He was given a file so thin that given his legal experience he believed that it had been sanitized. At the Oct 15, 2008, appeals hearing, he said Ms. Tina Tam of the Planning Department stated that there had been recent complaints against his client whereas they both knew that not a single complaint had been filed against his client since January 2005. He said she also stated at the hearing that there were two files - a planning file and an enforcement file. He did not recall which file he was given during the July 24, 2008, visit. After filing his complaint with the Task Force he again asked to see the file and did not see any evidence that there had been any recent complaints against his client. That, he said, means Ms. Tam's testimony given on Oct 15, 2008, was incorrect. He also presented to the Task Force copies of two Planning Department documents. The first one was dated July 23, 2008, and the second was dated Nov. 6, 2008. He said the difference between the two was that the July document had been edited and altered.

Respondent Rachna Rachna, who was the enforcement planner in Mr. Horcher's case, said the complainant reviewed the files on July 23 and was given the enforcement file as it existed then. A computer printout omitted several lines of information concerning neighborhood complaints but that the corrected and updated document was in the file when Mr. Horcher came on November 10, she said. The appeal file did not exist in July and was only created at a later date and made available on November 10. The file originally was very thin but became thicker when more documents were added as the months passed. She said Mr. Horcher requested an appeals board rehearing based on the fact that the Planning Department had presented new information that was not available to Mr. Horcher in July. However, the board denied the request in December and announced that there was no new or relevant information to rehear the case and that the missing information on the complaints did not prejudice his case. In summary, she said, Mr. Horcher was given the files as they existed when he came in July and in November. She said concerned parties always contact the Planning Department before their hearing date. Unfortunately Mr. Horcher did not contact the Planning Department between July and the hearing date and therefore missed the opportunity to get the updated information.

Member Craven noted that some entries in the November document were dated well before the July document creation date. Ms Rachna said that was correct and it was entered as the discrepancies surfaced.

Member Craven wanted to know what the department would do to avoid a similar situation from reoccurring. Ms. Rachna said there were technical issues but would work toward avoiding similar issue in the future.

Member Craven also said that it was incumbent on the department to use available resources and provide the requestor with whatever new information related to the original request became available. She also added that whether testimony given at another body was truthful or inaccurate was not within the jurisdiction of the Task Force.

Motion to find violation of Sec. 67.21 (a) & (c). (Craven / Goldman)

Public comment: Kimo Crossman said the Planning Department was also in violation of Sec. 67.29-7 because it was not keeping documents and correspondence in a professional and businesslike manner. He compared this case to that of an investigation into former Attorney General Alberto Gonzales for not taking notes contemporaneously. Ray Hartz said that when something is added to a file after a copy of it had been provided to the requester it was always possible to question if it was done to change the outcome. To provide incomplete information because of an unreliable system is a dangerous precedent to set, he added.

On the motion:

Ayes: Craven, Knee, Cauthen, Washburn, Knoebber, Johnson, Chu, Chan, Goldman

Excused: Williams

No further action taken. Referred to Education, Outreach and Training Committee and placed at the chair's discretion.

3.

08052

Determination of jurisdiction on complaint filed by Alvin Xex against the Arts Commission for not releasing information on the number of Black males and females employed by the Arts Commission and its arts groups

Motion to find jurisdiction ( Goldman / Cauthen )

Public Comment: None

On the motion:

Ayes: Craven, Knee, Cauthen, Washburn, Knoebber, Johnson, Chu, Chan, Goldman

Excused: Williams

4.

08052

Public hearing on complaint filed by Alvin Xex against the Arts Commission for not releasing information on the number of Black males and females employed by the Arts Commission and its arts groups

Complainant Alvin Xex said the request was to get specific breakdowns of tax monies to arts groups such as symphonies and orchestras. He wanted to know, for example, the formula used in allocating the monies and how its viability was determined. The underlying issue was the absolute lack of black males, he said, because it was rare to speak to a black male whenever he contacted an arts group. Many times, he said, they would say that they had never hired a black male, just others and black females. He said he had also contacted the Controller's office but was not given the data because it was difficult to retrieve. The Arts Commission also told him that they did not have the information. The offices do not dispute his contention which, he said, is based on queries made to several arts groups.

Respondent Nancy Gonchar, deputy director of the Arts Commission, said the commission had responded to both of Mr. Xex's requests and that copies were provided to the Task Force. On the first request, she said, the commission does not have a breakdown of its grantees by race. Mr. Xex was also provided with additional data such as pamphlets and brochures relative to his request. The second request was also responded to and the response was a list of the names of people employed by the commission over the past five years but under legal guidance did not list the race of those employees. She did however say that the Arts Commission has employed a number of African Americans over the years.

Mr. Xex, in rebuttal, said he had previously asked for information under the others category and was sure the commission has the data he wanted.

Chair Chu said there was no violation in the first request because the agency does not have the document. She also said the Department of Human Services may have information related to the ethnicity of city employees.

Motion to find no violation and forward complaint to Compliance and Amendments Committee to see if how Mr. Xex can receive the information he wants. ( Craven / Johnson )

Public comment: Kimo Crossman said there was a violation because the complainant did not get the information he wanted and it was up to the Task Force to see that he got what he wanted.

Motion to find violation ( Washburn / Johnson )

To clarify an earlier statement, Ms Gonchar said there was an optional section in the city and county's application for employment that dealt with race and ethnicity but that information was not collected. She also said the applications of successful applicants were also not routinely saved.

On the motion to find violation:

Ayes: Knee, Washburn, Johnson, Chan

Noes: Craven, Cauthen, Knoebber, Goldman, Chu

Excused: Williams

Motion fails

On the motion: to find no violation and forward complaint to the Compliance and Amendments Committee:

Ayes: Craven, Knee, Cauthen, Washburn, Knoebber, Johnson, Chan, Goldman, Chu

Excused: Williams

Referred to Compliance and Amendments Committee at call of the chair. Without objection.

5.

08055

Determination of jurisdiction on complaint filed by Kimo Crossman against DTIS and SFGTV for not providing a spreadsheet in Excel format, and the Supervisor of Records for not acting on the appeal in a timely manner.

Motion to find jurisdiction ( Goldman / Cauthen )

Public Comment: None.

DCA Paula Jesson, the Supervisor of Records, noted that this was the first time the Supervisor of Records had been called to appear before the Task Force.

Complainant Kimo Crossman wanted to split the file.

On the motion:

Ayes: Craven, Knee, Cauthen, Washburn, Knoebber, Johnson, Chu, Chan, Goldman

Excused: Williams

6.

08055

Public hearing on complaint filed by Kimo Crossman against DTIS and SFGTV for not providing a spreadsheet in Excel format, and the Supervisor of Records for not acting on the appeal in a timely manner

Complainant Kimo Crossman said he had requested information on staff from SFGTV in relation to the digital recording requirement. He said he received a pdf copy and a tab delimited copy of a Excel document, which he needed to see how SFGTV reached its conclusion. The documents provided did not contain formatting, hidden cells and macros, he said. For further assistance, he turned to the Supervisor of Records of Records, whom he claimed delayed her response by going on vacation for extended periods of time and referring the matter to another city employee who was on vacation. He also said the unsigned 2006 memo by DCA Paul Zarefsky was not the opinion of the City Attorney and it did not apply to his case.

Respondent Barry Fraizer, an analyst with the Department of Technology, also represented SFGTV. He said his office had also provided the complainant with a description of a formula used in the spreadsheet and did rely on the City Attorney's opinion to withhold the document. The opinion, which addresses the Word issue, should also apply to other electronic documents, he said, because all the issues associated with Word can also be found in Excel. There were concerns in maintaining the integrity of the document because a numerical zero could alter the final outcome and that kind of change, if occurred, was difficult to locate, he said. The cells in Excel could also include privileged and private information as well as attorney-client information. But most worrisome is that the metadata includes information that allows an unauthorized person to breach security. Also, software that strips an electronic document of data could change the numbers in the document, he said. DCA Paula Jesson said the City Attorney's Office had two issues, one was that the process departments would have to go through to review documents to see if there was privileged information in the metadata before their release was a burden and the second was the integrity of the document. She also said the complainant refuses to recognize that the document posted on the website is an opinion piece even though it does contain have the City Attorney's signature. On timing, she said Mr. Crossman has known for the last three years that the City Attorney's office also has to allocate time for its residents and other city departments.

Kimo Crossman said there are stringent rules on opinions and the unsigned document on the web is a memo. This is not the first time, he said, that he has had trouble getting a reasonable response from the Supervisor of Records who has always missed deadlines on appeals. On the spreadsheet, he said the Department of Technology representative did not mention that the document contained metadata that could compromise the city's network. He said there was free software available to remove metadata from documents. CPRA, he said, talks about modification to the original document and not the copy that he was requesting. Printed documents, he said, sometimes contain the file paths and if that information poised a danger to a network, system administrators would have banned the practice years ago. He also claimed that the Supervisor of Records does not do an independent review because she did not respond to his pointed arguments.

Member Knee said he found the arguments by Mr. Fraizer and Ms Jesson rather specious. He said the Task Force had found in previous cases that the 2006 memo violated the CPRA and Sunshine Ordinance. Also, he said, the requester and not the City agency decides on the format of the document. Letting the City decide on the format is an affront to the law and to the Task Force, he said. Mr. Fraizer, he said, had not shown to the Task Force that the requested document contained information that is prohibited from disclosure. If there was such information, it should be redacted and the document released, he said.

Member Craven said the issue with the Supervisor of Records was that of timing and because Ms Jesson has a reasonable excuse and a situation that needed extra time a violation did not occur. On the production of electronic records, she said there was no distinction between a Word document and an Excel spreadsheet. Departments have to provide it and if they want to change the law they need to seek a change in the CPRA and Sunshine Ordinance rather than choosing to ignore the requirement, she added.

In rebuttal, Mr. Fraizer said it would be a dilemma for the department if the Task Force found that it was in violation because to scrub out the information would likely change the numbers and so the department is forced to provide the documents with the links or provide a document that has been altered.

Kimo Crossman in rebuttal reiterated that there was free software to erase metadata in spreadsheets. He also questioned whether Mr. Fraizer was a technical analyst or a policy analyst. There is no danger in giving out spreadsheets because many governments and states including California follow the practice, he said, and that it would only be dangerous if the spreadsheet contained embarrassing information. He also said a Word document could also contain tables just as a spreadsheet would and that only Excel documents were exposed to manipulation was not true.

Motion finding that the Supervisor of Records of Records was not in violation ( Craven / Cauthen )

Motion to find DTIS and SFGTV in violation of Sec. 67.21 for withholding information was made by Member Goldman and seconded by Member Johnson. However, Member Craven made a friendly amendment to which Member Goldman and Member Johnson agreed.

Motion to find DTIS and SFGTV in violation of Sec. 67.21 (l) and CPRA Sec. 6253.9 for withholding information. ( Goldman / Johnson )

Public Comment: Anonymous Tenants said a crook is a crook and if someone wants to tamper with a document they won't hesitate. He also said that the US Treasury is very concerned about counterfeiters but still issued $100 bills.

On the motion to find no violation against the Supervisor of Records:

Ayes: Craven, Cauthen, Washburn, Chu, Goldman

Noes: Knee, Knoebber, Johnson, Chan

Excused: Williams

The motion fails. No further action.

On the motion to find DTIS and SFGTV in violation of Sec. 67.21 (l) and CPRA 6253.9 for withholding information:

Ayes: Craven, Knee, Cauthen, Washburn, Knoebber, Johnson, Chu, Chan, Goldman

Excused: Williams

Matter to be forwarded to CAC.

7.

08056

Determination of jurisdiction on complaint filed by Anonymous against the Police Department for not complying with Sec. 67.29 (Index to Records)

Member Chan requested that he be recused because of his association and financial connections with the Police Department.

On the motion:

Ayes: Craven, Knee, Cauthen, Washburn, Knoebber, Johnson, Chu, Chan, Goldman

Excused: Williams

Motion to find jurisdiction ( Goldman / Knee )

Public Comment: Sylvia Johnson made her comment.

On the motion:

Ayes: Craven, Knee, Cauthen, Washburn, Knoebber, Johnson, Chu, Goldman

Recused: Chan

Excused: Williams

8.

08056

Public hearing on complaint filed by. Anonymous against the Police Department for not complying with Sec. 67.29 (Index to Records)

Complainant Ray Hartz said the only reason he wanted to be anonymous was because he did not want his address and phone number posted on the Internet. He said he filed the complaint because the Police Department has failed to maintain an index of records and was in violation of Sec. 67.29. He said he had contacted the person responsible for maintaining the records and was told that nothing had been received from the department to comply with the law. He said he communicated with the department through the Internet but was not able to find out who really was responsible to uphold the provision. The index in the hearing packet, he said, raised two questions. The first was that the Police Commission was also in violation because it did not maintain an index and the second was that the information provided in the document did not meet the requirements of Sec. 67.29. The reason he wants an Order of Determination was because the department had failed to comply ever since the section became law and if the current situation continues he could come back a few months and say the department has yet to comply.

Respondent Sgt. Jack Hart of the Police Department said he did not think there was a violation because the City Administrator's Office had been provided with a copy of the department's document retention and destruction policy that was created in 1993. He also said he was contacted in 2004 to update the list and that effort fell on DCA David Creo, who has since left the department. Currently DCA Molly Stump was continuing that effort. He said Maureen Conefrey created the record that was in the packet but that it was rejected by the City Administrator's Office because of formatting and other issues. However, he said, the department was actively working on it.

Member Cauthen wanted to know who the custodian of records was and Sgt. Hart said the there was no single person because every employee is a custodian and that the document request could start by contacting Lt. Dan Mahoney, Ms. Conefrey or himself at Police Legal.

Member Knee wanted to know when the document would be ready and Sgt. Hart said he could not say when but was willing to appear before the Task Force and provide updates because several divisions and departments were involved. He also cautioned the department that it was illegal under the Sunshine Ordinance and the CPRA to ask why a person wanted a public document.

In rebuttal, Mr. Hartz said he wanted to make it clear that his complaint was not because he did not get a document but because of the lack of an index of records.

Motion to find a violation of Sec. 67.29 ( Knee / Goldman )

Public Comment: Kimo Crossman provided his understanding and views on Sec. 67.29. Sylvia Johnson made her comment.

On the motion:

Ayes: Craven, Knee, Cauthen, Washburn, Knoebber, Johnson, Chu, Goldman

Recused: Chan

Excused: Williams

Referred to Education, Outreach and Training Committee and placed at the chair's discretion.

Adjournment: The meeting was adjourned at 6:19 p.m.

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