{"body": "OpenGovernmentCommission", "date": "2019-07-23", "page": 1, "text": "MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING\nTUESDAY JULY 23, 2019 - 7:00 P.M.\nChair Henneberry convened the meeting at 7:00 p.m.\nROLL CALL -\nPresent:\nCommissioners Little, Shabazz, Tilos and Chair\nHenneberry - 4.\nAbsent:\nCommissioner Schwartz - 1.\nORAL COMMUNICATIONS, NON-AGENDA\nNone.\nAGENDA ITEMS\n3-A. Minutes of the February 4, 2019 Meeting\nCommissioner Shabazz requested that the minutes include that prior to the meeting, he\nhad informed staff he would be late.\nCommissioner Shabazz moved approval of the minutes.\nCommissioner Little seconded the motion, which carried by unanimous voice vote - 4.\n[Absent: Commissioner Schwartz - 1.]\n3-B. Hearing on Sunshine Ordinance Complaint Concerning Alleged Failure to Respond\nTimely to Public Records Act Request\nChair Henneberry noted that Commissioner Shabazz would have to recuse himself since\nhe filed the complaint.\nThe Assistant City Attorney gave a brief presentation.\nIn response to Commissioner Tilos' inquiry regarding the hundreds of requests per year,\nthe Assistant City Attorney stated approximately 30 to 40 come through the City Attorney's\noffice to determine if records could be disclosed; the other vast number of requests are\nhandled routinely without the involvement of the City Attorney's office.\nCommissioner Tilos inquired how requests are tracked, to which the Assistant City\nAttorney responded there is a designated paralegal who tracks the requests manually\nand assigns the matter to the respective attorney; stated he did not know why the request\nfrom the complainant was not tracked appropriately.\nMeeting of the\nOpen Government Commission\n1\nJuly 23, 2019", "path": "OpenGovernmentCommission/2019-07-23.pdf"}
{"body": "OpenGovernmentCommission", "date": "2019-07-23", "page": 2, "text": "In response to Commissioner Tilos' inquiry, the City Clerk stated all requests are tracked\nmanually, with exception of the City's SeeClickFix online system which is used primarily\nfor Public Works maintenance requests, i.e. request to fix potholes, etc.\nChair Henneberry inquired whether the same system is used in the City Attorney's office,\nto which the Assistant City Attorney responded the City Attorney's office does not receive\nthe requests initially, only the ones that need further evaluation regarding whether certain\ndocuments can be disclosed.\nChair Henneberry inquired whether a request is automatically acknowledged.\nThe Assistant City Attorney responded in the affirmative for most cases; stated sometimes\nthe acknowledgement includes a time extension to provide a response depending on the\nrequest.\nCommissioner Henneberry stated the complaint before the Commission tonight was\nskipped over in terms of all the deadlines and acknowledgements.\nThe Assistant City Attorney concurred with Commissioner Henneberry, stated the\ncomplainant's request was not handled timely or appropriately, unfortunately.\nCommissioner Little inquired whether there is a standardized set of regulations that\ndetermine what can be disclosed and what cannot.\nThe Assistant City Attorney responded there are several exemptions under the Public\nRecords Act that are not subject to disclosure based on the category; there are always\ngray areas in interpreting the categories; there is a catch-all provision as well about\nprivacy interest that would be impacted by disclosure substantially outweighing the\nobligation to disclose, which is also a grounds not to provide the information; the requestor\nneeds to be informed why information is not being disclosed.\nCommissioner Little inquired whether there were no records to even review for this\nrequest, to which the Assistant City Attorney responded in the affirmative; stated the\nPolice Department found no records responsive to the request.\nCommissioner Little inquired whether there is now a process for making sure the Police\nare maintaining records post January 1, 2019 so that there would be something to review\nshould another request come up.\nThe Assistant City Attorney responded in the affirmative; stated there are records pre-\nand post-January 1, 2019; if there is an incident that falls within the categories and a\npublic records request is made, documents would be produced unless there was some\nother exception.\nMeeting of the\nOpen Government Commission\nJuly 23, 2019\n2", "path": "OpenGovernmentCommission/2019-07-23.pdf"}
{"body": "OpenGovernmentCommission", "date": "2019-07-23", "page": 3, "text": "Commissioner Little inquired what processes have been put into place since this incident\nhappened to make sure no more records requests are lost and whether the process is\nconsistent or needs tightening up.\nThe Assistant City Attorney responded there is always room for improvement; stated the\nCity Attorney's office is not aware that the situation happens routinely; Commissioner\nShabazz's email from today indicates otherwise, but he is not aware of other incidents;\nthe City Attorney's office will look into the incidents even though there was not a complaint\nfiled at the time and to review why there was not a timely response on a couple of matters.\nCommissioner Tilos inquired whether it was fair to say the City Attorney's office's\nresponse to public records request is to wait for a complaint to be filed before providing\ninformation.\nThe Assistant City Attorney responded in the negative; stated that he would not categorize\nthe process in that way; the person designated to track the requests is usually very diligent\nand makes sure the requests are handled in a timely manner; this particular request\nseems to be an anomaly.\nCommissioner Tilos inquired whether follow-up on the other records requests have been\ndone to ensure they were answered timely, to which the Assistant City Attorney responded\nhe cannot answer definitively.\nChair Henneberry stated it can be assumed that the other requests have been fulfilled\nbecause there have not been any complaints filed; the City would certainly be hearing\nfrom KQED and the East Bay Times if requests were not fulfilled.\nThe Assistant City Attorney concurred with Chair Henneberry, stated most people\nsubmitting a records request that is not fulfilled would not just ignore it; he is not certain\nwhether or not the other requests have been followed-up but a review of the other\nrequests can be done.\nIn response to Chair Henneberry's inquiry regarding when an email was sent by the City\nAttorney's office to the complainant, the Assistant City Attorney stated the email was sent\non May 29, 2019 after the complaint was filed.\nIn response to Commissioner Little's inquiry regarding a response sent to the complainant\non June 10, 2019, the Assistant City Attorney stated every attempt is made to resolve the\ncomplaint before having the matter come before the Commission.\nCommissioner Little inquired whether perhaps the City Attorney's Office fulfilling several\nrequests regarding the same issue was the reason the complainant's request was\noverlooked.\nMeeting of the\nOpen Government Commission\n3\nJuly 23, 2019", "path": "OpenGovernmentCommission/2019-07-23.pdf"}
{"body": "OpenGovernmentCommission", "date": "2019-07-23", "page": 4, "text": "The Assistant City Attorney responded in the negative, stated the voluminous requests\nhe mentioned were not a specific incident, requests were for any incident which fell into\nthe new categories.\nIn response to Commissioner Little's inquiry, the Assistant City Attorney stated the\ncomplainant made a request for a broad variety of incidents.\nIn response to Commissioner Little's inquiry, Rasheed Shabazz, Complainant, stated\nthere were multiple experiences where he did not received responses in a timely manner.\nMr. Shabazz gave a brief presentation providing background information on Senate Bill,\nfacts related to his complaint, relevant State law related to Police records; commented on\nthe importance of transparency and perception; and provided recommendations to make\nlocal government accessible to the public.\nCommissioner Tilos stated he would like to see the statistical reporting regarding the\npublic records requests; he would like to see some sort of penalty imposed on the\nagencies or departments that do not provide responses in a timely manner.\nChair Henneberry stated the Commission's decision does not go far enough and does\nnot establish the framework for avoiding the situation from repeating itself; he is not\ncomfortable signing it as is; it is not comprehensive enough; there should be guarantees\nfrom the City departments that when a citizen makes a request, it will be acted on in a\ntimely manner; 39 out of 40 requests may have been fulfilled, but dropping the ball on\none request in this egregious manner is not acceptable.\nCommissioner Tilos stated the number of requests not been confirmed; the actual number\ncould be lower.\nCommissioner Little concurred with Chair Henneberry; stated that she is not comfortable\nsigning off on the decision as it does not outline the expectation for making sure there are\nprocedures put into place so that the situation does not end up back before the\nCommission.\nIn response to Chair Henneberry's inquiry, the Assistant City Attorney stated the staff\nreport and decision points out that the matter was inadvertent rather than intentionally\noverlooking the complainant's requests; based on what he has heard from the\nCommission, he could draft a revised decision for the Commission to consider at the next\nmeeting on October 7, 2019.\nChair Henneberry stated the perception from the City Attorney's office is the issue was\ninadvertent and unintentional, which are non-legal terms.\nThe Assistant City Attorney concurred with Chair Henneberry; stated a violation is\na\nviolation.\nMeeting of the\nOpen Government Commission\nJuly 23, 2019\n4", "path": "OpenGovernmentCommission/2019-07-23.pdf"}
{"body": "OpenGovernmentCommission", "date": "2019-07-23", "page": 5, "text": "Commissioner Little stated she thinks it is important to bring up the topic of conflict of\ninterest again; she is curious how legal counsel, which is the same counsel defending the\nincident, can advise the Commission.\nThe Assistant City Attorney stated part of the responsibilities of the City Attorney's office\nis to advise all boards and commissions, as well as the City Council; typically, the kinds\nof issues that may come up before the Open Government Commission are ones the City\nAttorney's office can advise on; conflict of interest has been discussed with the new City\nAttorney and he feels there is no conflict of interest; the City Attorney's role is to give legal\nadvice; the Commission may accept the advice or not, but it does not mean there is a\nconflict of interest; it may just mean the City Attorneys has a different opinion than the\nmajority of the Commission; unless the City Council indicates that it wishes the Open\nGovernment Commission to have outside Counsel, the intent is to continue to provide\nlegal advice to the Commission.\nCommissioner Little whether Commissioner Shabazz's circumstances as the complainant\ncreate a conflict of interest, yet the City Attorney's office involvement does not.\nThe Assistant City Attorney responded in the affirmative; stated a complainant, by\ndefinition, is not in a position to decide his or her own complaint; the City Attorney's office\nrecognized in this particular case that the request did not get fulfilled and that there was\na violation; the City Attorney's office has been up front about it and does not see a conflict\nof interest.\nCommissioner Tilos concurred with Commissioner Little; stated it could be safe to say the\nconflict of interest is perceived but not real; he believes the Commission is powerful\nenough to consider the legal advice given by the City Attorney's office without conflict and\nbe able to form its own opinions regarding the advice.\nThe Assistant City Attorney concurred with Commissioner Tilos; stated his office provides\nlegal advice; the City Council and other Boards and Commissions do not always follow\nthe advice, but it is within their prerogative; he hopes the advice being given tonight is\nconsistent with what the Commission would follow, including adding language to the\ndecision that indicates what should happen on a going-forward basis; he is ready to draft\nsomething for the Commission's consideration.\nChair Henneberry stated he would like the Commission to make concrete\nrecommendations in the decision.\nCommissioner Tilos stated he would like to see monthly or quarterly metrics about the\nnumber of requests made and fulfilled, not only for the City Attorney's office, but overall;\nuntil 100% can be seen, there is no progress toward fixing the problem or the inadvertent\ntechnical violations that could happen.\nMeeting of the\nOpen Government Commission\n5\nJuly 23, 2019", "path": "OpenGovernmentCommission/2019-07-23.pdf"}
{"body": "OpenGovernmentCommission", "date": "2019-07-23", "page": 6, "text": "Chair Henneberry concurred with Commissioner Tilos; stated the request is reasonable\nconsidering the volume of record requests made annually; he would like to emphasize\nthe need for an immediate acknowledgement of requests made.\nCommissioner Little inquired whether an excel spreadsheet is used for the tracking, to\nwhich the Assistant City Attorney responded that he is not certain of the tracking method\nbut will provide information at the next meeting.\nCommissioner Little stated that she would like the City Attorney's office to review its\nprocesses and come up with internal suggestions.\nThe Assistant City Attorney stated that he has notes of the well-founded suggestions and\nwill draft the changes to the decision.\nThe City Clerk added that her office usually always double-checks when copied on\nrequests and has already included the new practice going forward.\nIn response to Commissioner Little's inquiry, the City Clerk stated often times the requests\nwhich come through the SeeClickFix system to the Clerk's office are not public records\nrequests and are Code Enforcement or other requests, which the office has to reassign;\nthe actual public records requests that come through to the Clerk's office are typically\nfulfilled within the 10 days because most of the information is not confidential and does\nnot require extra review.\nChair Henneberry stated the direction is for staff to go back to the drawing board to\nrestructure the decision so that the situation does not repeat itself.\nThe City Clerk clarified that the hearing will be continued to a date certain, October 7,\n2019 for the decision to be reviewed.\nChair Little inquired whether the Commission would receive the revised draft decision\nprior to the agenda packet, to which the Assistant City Attorney responded in the\naffirmative; stated that he will provide the draft soon so that the Commission will have an\nopportunity to provide comments and it can be close to final form ahead of the October\n7th meeting.\nIn response to Commissioner Tilos' inquiry, the Assistant City Attorney stated\nCommissioner's comments should be directed to him alone, not fellow Commissioners,\nto be compliant with the Sunshine Ordinance.\nCommissioner Little stated Commissioners can reach out to one other Commissioner if\nthere are any questions or to clarify anything.\nCOMMISSION COMMUNICATIONS\nMeeting of the\nOpen Government Commission\nJuly 23, 2019\n6", "path": "OpenGovernmentCommission/2019-07-23.pdf"}
{"body": "OpenGovernmentCommission", "date": "2019-07-23", "page": 7, "text": "Commissioner Shabazz stated he will not be able to attend the upcoming Sunshine\nOrdinance training, but will watch the video.\nCommissioner Little stated that she, too, will not be able to attend the Sunshine Ordinance\ntraining.\nThe City Clerk stated the Sunshine Ordinance Training will be on August 13th at 10:30\na.m. in Council Chambers; the training will be recorded so those who are unable to attend\nwill be able to watch the recording online.\nChair Henneberry stated that he may not be able to attend the training as well, but will\nwatch the video.\nADJOURNMENT\nThere being no further business, Chair Henneberry adjourned the meeting at 8:01 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\n7\nJuly 23, 2019", "path": "OpenGovernmentCommission/2019-07-23.pdf"}