{"body": "OpenGovernmentCommission", "date": "2015-10-14", "page": 1, "text": "MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING\nWEDNESDAY OCTOBER 14, 2015 - - 7:00 P.M.\nChair Aguilar convened the meeting at 7:02 p.m.\nROLL CALL -\nPresent:\nCommissioners Bonta, Dieter, Foreman, Tuazon, and\nChair Aguilar - 5.\nAbsent:\nNone.\nORAL COMMUNICATIONS, NON-AGENDA\nNone.\nAGENDA ITEMS\n3-A. Minutes of the March 30, 2015 Meeting\nCommissioner Bonta stated she would pass on a few typos to the City Clerk.\nCommissioner Dieter moved approval of the minutes as corrected.\nVice Chair Foreman seconded the motion, which carried by unanimous voice vote - 5.\n3-B. Hearing of Sunshine Ordinance Complaints filed September 15, 2015\nThe Assistant City Attorney gave a brief presentation.\nJohn Klein stated he is embarrassed about needing to be present and thought about\nwithdrawing the complaint because it seems trivial; however, it is not trivial; through the\nwhole process, which has been skeletal, the response has not been as it should be; he\nsubmitted five individual records requests directly to the Mayor and each\nCouncilmember because that is the way he wanted to do it; if the City Attorney wanted\nto consolidate the response, it would have been fine; however, the City Attorney's\nresponse on the 11th does not even say who he is responding for; the City Clerk is the\ncustodian of records; that he did not know why he was getting an email from the City\nAttorney; he thought maybe it is on behalf of the Mayor, but did not know; while the\nresponse was timely, it did not include the information the rule requires, which is: when\nthe documents will be ready, how the documents will be delivered and by whom; said\ninformation is not in the City Attorney's September 11th response; he did not know who\nthe Attorney was responding for and the required information was not included in the\nthree day response; the Attorney said he needed clarification; the City Attorney inquired\nif they could talk Wednesday; when they did talk Wednesday, the clarification the\nAssistant City Attorney needed was the timeframe of the requested documents;\nquestioned why the City Attorney did not simply ask in the original email; by that time,\nthe response was getting really late and he was feeling that the City's response was\nMeeting of the\nOpen Government Commission\nOctober 14, 2016\n1", "path": "OpenGovernmentCommission/2015-10-14.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-10-14", "page": 2, "text": "disingenuous; he did not need to deal with a particular Attorney; if an Attorney is out of\nthe office for three days, the City should assign someone else to be responsible for a\nresponse; eight days into the ten day period after the conversation with the Attorney, a\n14 day extension was requested because the request was voluminous; the conversation\nwas at 2:30 p.m. in the afternoon, by 5:30 p.m., the Attorney knew that the response\nwas voluminous; questioned how he learned so much so quickly; following the emails\nprovided, the Attorney was asked about the definition of voluminous and never replied;\nthe September 11th response was inadequate because it did not include when, how and\nby whom; if the City's position is that the complaint is frivolous, he suggests timelines\nmean something under the rule; provided an example of timeliness involved with\nreceiving a parking ticket; timeliness should mean something in this instance and should\nbe more meaningful for the City Attorney; the responsibility to timelines does not\ndecrease as it goes up, but rather includes all of the responsibilities and assumes a\nmuch higher standard; that he is a consumer of public records; he has done a number\nof public record requests with the City Clerk; it is never an issue; rather than getting an\nemail in three days telling him when he will receive the documents, he gets the\ndocuments; he is never told the documents will be provided next week; by the end of\nthree days, he has the documents; he submitted a records request this week; 12\nminutes later, he received an email from the City Clerk telling when, by whom and how;\ntimelines matter; the complaint is not trivial given all the other incidentals of the\ninteraction and the disingenuous nature of how the request was handled by the\nAttorney.\nVice Chair Foreman inquired if Mr. Klein has received the documents, to which Mr. Klein\nresponded in the affirmative.\nVice Chair Foreman inquired if he received the documents on October 2nd, to which Mr.\nKlein responded that he received them on October 1st\nVice Chair Foreman inquired how voluminous were the documents, to which Mr. Klein\nresponded 475 pages, which is not voluminous.\nVice Chair Foreman inquired how many emails [were provided in response to the\nrequest], to which Mr. Klein responded that he has not been through or counted the\nemails; stated there are a lot of repetitive emails.\nVice Chair Foreman stated that he apologies he does not have the documentation;\nhowever, he has read it all; inquired whether there was a statement by the City Attorney\nin one of his emails to Mr. Klein that the documents had to be reviewed before they\ncould be released because there might be privileged material.\nMr. Klein responded that he does not have his copy; it was voluminous; eight days into\nthe request, it seems disingenuous to suddenly ask for an extension because the\ndocuments are voluminous.\nVice Chair Foreman stated that he is looking at an email sent by Attorney Alan Cohen.\nMeeting of the\nOpen Government Commission\nOctober 14, 2015\n2", "path": "OpenGovernmentCommission/2015-10-14.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-10-14", "page": 3, "text": "Attorney to do so during the phone call.\nVice Chair Foreman stated to understand the complaint, what Mr. Klein is saying now is\nthat he is not objecting to an Attorney responding as opposed to a Councilmember;\ninquired whether Mr. Klein is objecting to the Attorney not disclosing who he was\nrepresenting.\nMr. Klein responded in the negative; stated when, how and who within three days; the\nAttorney gave no information and left the office for three days; his request was on ice for\neight days; the issue is the response was not adequate with regard to the rule of three\ndays of giving who, when and how, which may seem trivial; however, it is the behavior\naround it; the Attorney could have said sorry he was late and that he would do his best\nto get the documents but might need a few more days; it was not like that; the\nAttorney's response was defensive; he has had a lot of success of rapid turnaround\ncustomer service with the City Clerk's office.\nVice Chair Foreman inquired if Mr. Klein had ever requested emails before, to which Mr.\nKlein responded not specifically.\nThe Assistant City Attorney stated that he does not think anyone from his office or the\nCity has indicated that the complaint is trivial or frivolous; looking at Mr. Cohen's\nresponse, it says he would like to obtain some clarification on the request and it would\nbe helpful to discuss it; Mr. Cohen stated he would be out of the office until Wednesday\nmorning; that he does not read the email as defensive; it seems reasonable for a\nperson trying to respond to a public record act request to want to better understand\nwhat is being requested; when something comes to the Council, there is a responsibility\nMeeting of the\nOpen Government Commission\nOctober 14, 2016\n3", "path": "OpenGovernmentCommission/2015-10-14.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-10-14", "page": 4, "text": "for the City Attorney's office to check with the Councilmembers about their individual\nemails; more time is involved when making a records request of a public official as\nopposed to walking into the City Clerk's office where documents can be obtained\nimmediately; there were reasons why it took longer than what otherwise would be\nallowed; the email speaks for itself; that he does not find it to be offensive; Mr. Cohen\nwas trying to get some clarification; it is true the email does not say it is on behalf of the\nfive Councilmembers; however, since all of the requests came in on September 7th, if he\nwere the recipient, he would think it would be reasonable to assume it is in response to\nthe requests from that date.\nVice Chair Foreman stated that he does not see a problem; the Attorney should have\nindicated who he was representing; however, he thinks it is obvious; when he read all of\nthe emails, he assumed that the Attorney was responding for everybody; Mr. Klein does\nhave a point that the Attorney said he wanted clarification and what he wanted to know\nwas the timeframe; he understands how Mr. Klein could assume there was something\nambiguous in his request; the very simple clarification could have been stated in the\nAttorney's email.\nThe Assistant City Attorney stated the point of clarification was about the beginning\ntimeframe; correspondence relative to rent control issues have been before the City\nCouncil since September, 2014; Mr. Cohen was simply asking how far back in time to\ngo; after a telephone conversation, the email Mr. Cohen sent to Mr. Klein on September\n16th indicates that the time frame is June 1st through September 1st; that [timeline]\nseems to be the point of clarification; there were emails and other material relative to\nrent control that predated September 2015; that he does not disagree the email could\nhave been more artfully written; however, eventually Mr. Klein received the documents\nwithin a reasonable time and within the 14 day extension.\nCommissioner Bonta stated there is one way to look at the email from Mr. Cohen; \"by\nwhom\" is Attorney Cohen; \"how\" is by having a conversation to seek clarification;\n\"when\" was Wednesday morning to schedule a time; it is very clear that Mr. Klein was\nfrustrated by the engagement; she agrees there could have been more clarity in the\ninitial email response; however, it does seem like there was intention to be responsive\nin the areas that Mr. Klein is primarily concerned with: when, how and whom, within the\nthree day timeframe.\nCommissioner Dieter thanked Mr. Klein for bringing the matter before the Commission;\neven if there was not a violation of the Sunshine Ordinance, the Commission strives to\nmake government more transparent and more accessible to individuals; Mr. Klein's\nfeedback may actually improve a couple of things.\nMr. Klein stated the Attorney's response sounds a lot like someone trying to talk their\nway out of a parking ticket.\nCommissioner Dieter inquired whether the City did respond within three business days;\nand whether then, within ten days, the City stated that the request was voluminous so it\nMeeting of the\nOpen Government Commission\nOctober 14, 2015\n4", "path": "OpenGovernmentCommission/2015-10-14.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-10-14", "page": 5, "text": "would take a little bit more time; stated the criteria in Sunshine Ordinance Section 2-\n92.9 was met.\nMr. Klein responded the language specifies the response has to address by whom,\nwhen and how the request will be fulfilled.\nCommissioner Dieter stated that she is reading Section 2-92.9, which states a request\nto inspect or obtain copies of public records that is submitted to any department or\nanybody shall be satisfied no later than 10 business days unless the requester is\nadvised in writing within three business days that additional time is needed to determine\nwhether the request for records is likely to comprise a voluminous amount of separate\nand distinct writings.\nCommissioner Bonta inquired if Section 2-92.5 is being referenced, which indicates a\nrequest for information to any agent of the City requires the agent to respond to said\nrequest within three business days by providing or explaining how, when and by whom.\nMr. Klein responded in the affirmation; stated said Section is the one in his complaint.\nVice Chair Foreman stated that he thought the issue was frivolous when he first looked\nat it; however, the more he reviews it, the more he is a little bit concerned; he\nunderstand Mr. Klein received the documents in time; Mr. Klein is not complaining about\nthat; he is putting himself in Mr. Klein's shoes; a response was due in three days; the\nresponse came in on the third day, which is perfectly okay; the response is clarification\nis needed; Mr. Klein wrote back less than two hours later asking the Attorney to tell him\nwhat is unclear; in hindsight from the 16th, Attorney Cohen could have very easily met\nthe three day requirement and still could have asked for the extension; that he does not\nhave a problem with staff asking for the extension; these are emails and over 400\npages, which might include privileged material; he has no problem whatsoever with the\nextension; if he were in Mr. Klein's shoes, he would say the Attorney is dragging his\nfeet; he does not know why the Attorney was dragging his feet; it may be totally\ninnocent; maybe he was just going away for the weekend, but he is dragging his feet;\nthat he does not want the public or anyone asking for documents to feel like they have\nto drag the documents out of the City; he is concerned because clearly the three day\ntimeline could have been met.\nThe Assistant City Attorney stated when a complaint has been filed under the\nordinance, the Commission hears the evidence and arguments and has to render a\nformal written decision on the matter; staff needs the Commissions direction.\nCommissioner Tuazon stated the way everyone communicates now with text and email\nis so easy to just write something that causes more questions; if he asks somebody a\nquestion through email, the response comes back with more questions or creates more\nproblems instead of addressing the issue; people need to be very careful when\nanswering an email; he is not saying that Mr. Cohen was reckless here; however, he did\nnot address the whom, when and how.\nMeeting of the\nOpen Government Commission\nOctober 14, 2016\n5", "path": "OpenGovernmentCommission/2015-10-14.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-10-14", "page": 6, "text": "Commissioner Bonta stated Mr. Cohen did respond via email within the three day time\nperiod and followed up with a phone call to get clarifying information; the height of\ncustomer service is to actually speak to someone directly and try to get the information.\nMr. Klein stated it is difficult to understand said reasoning when the rule clearly states\nwithin three days the requester will get a response with regarding to when, how and by\nwhom the request will be fulfilled.\nVice Chairman Foreman stated that is the issue; Mr. Klein is not complaining about not\ngetting the documents; his formal complaint is limited to the three day rule; that he leans\ntoward the three day rule was violated; what bothers him is that Attorney Cohen may\nhave a perfectly good explanation, but is not here; Attorney Cohen is the one who wrote\nthe email and the Commission is supposed to be having a hearing about the email.\nMr. Klein inquired whether the other party is supposed to present, to which the Assistant\nAttorney responded he is present on Mr. Cohen's behalf because the documents speak\nfor themselves; the Commission has enough information to determine whether or not\nthere was or was not a violation of the ordinance; that he does not think intent, except\nas read through the email, is relevant.\nVice Chair Foreman stated that is a good point; it is not a question of intent.\nVice Chair Foreman moved approval of finding that there was a violation of the three\nday rule and [staff] did not comply with the requirements thereof; the needed\nclarification could have easily been satisfied in three days.\nChair Aguilar stated the City met \"by whom:\" the City Attorney would be responding on\nbehalf of the Councilmembers; \"when\" was going to be discussed; the Attorney could\nnot answer \"when\" because he needed information on the timeframe; he needed to\nknow where to start and stop gathering information; maybe the Attorney could have put\nthe timeframe of the documents in the email or maybe he could not have; maybe he\nthought it was going to take a lot more back and forth discussion; the Attorney needing\nclarification on \"when\" then it is \"how;\" as far as she is concerned \"how\" is the only\noutstanding thing.\nVice Chair Foreman stated the Attorney could not really answer \"how\" until \"when\" was\nanswered.\nChair Aguilar stated the Attorney needed information; maybe in his judgement a phone\ncall was the best way to get to the bottom of what Mr. Klein wanted without having 16\nemails go back and forth; the Attorney was out of the office and said he was not going\nto be available; she is having a hard time saying that the Attorney violated the Sunshine\nOrdinance because the email has whom and when; how was the problem because the\nAttorney needed clarification and could not address how without when.\nMeeting of the\nOpen Government Commission\nOctober 14, 2015\n6", "path": "OpenGovernmentCommission/2015-10-14.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-10-14", "page": 7, "text": "The Assistant City Attorney stated the original motion failed and there needs to be\nanother motion or some decision made.\nChair Aguilar moved approval that the Sunshine Ordinance was not violated.\nCommissioner Dieter seconded the motion, which carried by the following voice vote:\nAyes: Commissioners Bonta, Dieter, Tauzon and Chair Aguilar - 4. Noes: Vice Chair\nForeman - 1.\nThe Assistant City Attorney stated that he draft the decision and provide it to the\nCommission.\nCOMMISSIONER COMMUNICATIONS\nThe Assistant City Attorney stated the [Sunshine Ordinance] amendments were heard\nby the City Council in October; the Council has a very lively hour and a half discussion;\nCouncil agreed with most of the non-substantive issues that the Commission agreed\nwith; the Council did not accept or wanted further clarification on the more difficult\nissues that the Commission struggled with; the Council also raised some other issues;\nhe intends to bring a report back to the Commission in January or February for further\nconsideration of the items that the Council had concerns about, plus some new items\nthat have risen in the interim.\nVice Chair Foreman inquired if Commissioners could comment on the matter now, to\nwhich the Assistant City Attorney responded the matter is not on the agenda; he was\nproviding information about what transpired.\nVice Chair Foreman stated that he took it upon himself to defend the Commission's\nviews; he very carefully limited himself defending the Commission's statements; he also\nvery carefully stated his personal opinion but did comment on other issues; the Council\nhad a problem with whether a Commission can write a letter.\nThe Assistant City Attorney stated the matter will be brought back.\nCommissioner Dieter stated she does not mind meeting in January.\nThe City Clerk stated the next regular meeting is February 1st\nChair Aguilar stated maybe the matter should be addressed February 1st\nCommissioner Dieter inquired if the Commission would be discussing the other two\npending issues from the last Commissioner Communication: the Commission is\nsupposed to issue an annual report and needs to figure out how to do so, and the City\nAttorney's office is supposed to issue a report about whether or not any documents\nhave been declassified.\nMeeting of the\nOpen Government Commission\nOctober 14, 2016\n7", "path": "OpenGovernmentCommission/2015-10-14.pdf"}
{"body": "OpenGovernmentCommission", "date": "2015-10-14", "page": 8, "text": "The Assistant City Attorney responded both matters will be placed on the agenda.\nThe City Clerk noted Vice Mayor Matarrese requested clarification on the annual report\nas part of the Sunshine Ordinance discussion.\nADJOURNMENT\nThere being no further business, Chair Aguilar adjourned the meeting at 7:41 p.m.\nRespectfully submitted,\nLara Weisiger\nCity Clerk\nThe agenda for this meeting was posted in accordance with the Sunshine Ordinance.\nMeeting of the\nOpen Government Commission\nOctober 14, 2015\n8", "path": "OpenGovernmentCommission/2015-10-14.pdf"}