{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 1, "text": "MINUTES OF THE OPEN GOVERNMENT COMMISSION MEETING\nMONDAY\nDECEMBER 6, 2021\n7:00 P.M.\nChair Tilos convened the meeting at 7:02 p.m.\nROLL CALL -\nPresent:\nCommissioners Chen, LoPilato, Montgomery, Reid,\nShabazz and Chair Tilos - 5. [Note: The meeting was\nconducted via Zoom.]\nAbsent:\nNone.\n[Staff present: Assistant City Attorney John Le; Chief Assistant City\nAttorney Elizabeth Mackenzie; City Clerk Lara Weisiger]\nNON-AGENDA PUBLIC COMMENT\nAnonymous [not able to speak; spoke under second section of Non-Agenda Public\nComment]\nCOMPLAINT HEARINGS\n3-A. Hearing on Sunshine Ordinance Complaint Filed on September 21, 2021\nRasheed Shabazz, Complainant, gave an Opening Statement and Presentation of Facts.\nThe Assistant City Attorney, City/Respondent, gave an Opening Statement and\nPresentation of Facts.\nMr. Shabazz gave a Reply to the City/Respondent Opening Statement and Presentation\nof Facts.\nVice Chair LoPilato inquired whether the Commission should be considering the\ndocuments produced at the time the complaint was made or documents produced at the\ntime the complaint reaches the Commission on the hearing date.\nThe Chief Assistant City Attorney inquired whether the question is about the two alleged\nviolations being considered separately in terms of the statute of limitations argument.\nVice Chair LoPilato responded in the negative; stated that she is curious about whether\na violation would be moot if it is cured before the hearing.\nThe Chief Assistant City Attorney stated it is up to the Commission's discretion; whether\nor not there was a technical violation that has now been cured versus no violation is a\nfactor to weigh; it is at the Commission's discretion to make either finding.\nVice Chair LoPilato stated screenshots provided today have been referenced; she has\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n1", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 2, "text": "not seen anything come through and the agenda has not been updated; the Commission\nis totally in the dark about the documents; inquired whether the Complainant can provide\ninsight about what he received and where it came from.\nMr. Shabazz responded that he cannot describe that much because he received it this\nafternoon; screenshots that have an October date from Alamedanonymous were sent to\nthe City on Friday.\nIn response to Vice Chair LoPilato's inquiry regarding the screenshots, the Assistant City\nAttorney stated he was not aware of the document until this afternoon since City Hall is\nclosed on Fridays; he did not review it when he received it, so he is not able to summarize\nit; he immediately asked that it be provided to the Complainant.\nCommissioner Chen inquired what the expectations and requirements are of the\ncustodian of records when such a request is received.\nThe Assistant City Attorney stated within about an hour of receipt, the request was\nprovided to a number of individuals inside the City to process the request; according to\nthe California Supreme Court, the nature of the request can be summarized to the\ncustodian of records; since the request was related to social media, it is expected that it\nwould be given to the custodian of records, who is the best person to look at those type\nof requests; the law says that search can be reasonably relied upon and that is precisely\nwhat the City Attorney's office did; the idea that the City Attorney's office did not produce\nrecords is inaccurate.\nCommissioner Chen inquired what date the City Attorney's office received the request, to\nwhich the Assistant City Attorney responded the request was received on April 21st and\nprovided to the custodian of records.\nCommissioner Chen inquired about the custodian of records being required to reply.\nThe Assistant City Attorney responded the custodian of records is required to do a search\nto produce records; in this case, it was social media; the standard practice is when the\ncustodian of records is copied on the request, they are aware of what they need to do;\nonce it is turned over to the City, it is treated like any other records request; the City\nAttorney's office reviews the request for possible exemptions and \\produces the records.\nIn\nresponse to Commissioner Chen's inquiry, the Assistant City Attorney stated he recalls\nonly receiving one related record and was not sure if it was from the custodian of records\nor staff.\nCommissioner Chen inquired whether the custodian of records would then be in violation\nof responding timely.\nThe Assistant City Attorney responded the City can only act through its agents, the\nindividuals who do the City's work; stated it can be viewed as anyone who is involved in\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n2", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 3, "text": "the processing of the request.\nFollowing a summary of the City's responses, Chair Tilos inquired about Nextdoor.\nThe Assistant City Attorney responded there are two separate Nextdoor accounts; stated\none is the Agency account, which is managed by the City's Public Information Officer and\nis intended for one-way communication, although comments are allowed; records were\nproduced from said account since it is under the City's custody and control; these records\nwere in addition to providing the custodian of records of the personal Nextdoor account.\nChair Tilos inquired whether Councilmember Herrera Spencer's comments were on the\nCity's Nextdoor account, to which the Assistant City Attorney responded in the affirmative.\nIn response to Chair Tilos's inquiry, the Assistant City Attorney stated the City provided\nrecords from the City's Nextdoor account to the Complainant; the Complainant then\nstated he was not interested in the records from the City's account, but was interested in\nrecords from the personal account.\nChair Tilos clarified the reason records were not produced from the personal account was\nbecause the City did not have access to them.\nThe Assistant City Attorney concurred; stated the City produced the records from the\npersonal account after receiving them today.\nIn response to Chair Tilos's inquiry, Mr. Shabazz stated that he did not have any\nexpectations about the particular technology, medium or method in which the records\nwere maintained or retained; he asked for the correspondence and was aware of one\ninstance which included his name put on a crime thread; he did not know the particulars\nof how the information would be obtained.\nIn response to Commissioner Montgomery, the Assistant City Attorney stated when\nreferring to the agency account, it is possible for a member of the public to comment on\nit, but it is not possible for them to initiate a new post; new posts can only originate from\ntheir own personal Nextdoor account.\nCommissioner Montgomery inquired whether Mr. Shabazz requested communication\nfrom Councilmember Herrera Spencer's own Nextdoor account as well as comments she\nmade under City posts.\nMr. Shabazz responded in the affirmative; stated that he requested correspondence to\nand from Councilmember Herrera Spencer and comments by her on the Nextdoor\nplatform; he was not aware of any particular distinction between the City's account and\nCouncilmember Herrera Spencer's personal account.\nCommissioner Montgomery stated the Commission could not access the complete\ncomments as only screenshots were provided; inquired whether Mr. Shabazz received\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n3", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 4, "text": "and was able to read the complete comments.\nMr. Shabazz responded in the negative; stated that he received two links to policies\nrelated to elected officials usage of the Nextdoor platform, as well as a number of different\ncomments; he does not use Nextdoor; initially he was using a laptop and was unable to\naccess the application in order to read the complete comments.\nIn response to Commissioner Montgomery's inquiry, the Assistant City Attorney stated\nthere were not any more to the comments than the screenshots provided to the\nCommission; only excerpts were provided; this was done because the City Attorney's\noffice was not clear whether or not the Complainant was requesting records from the\nCity's agency account; an email stating the documents were excerpts was sent asking if\nthe information was what was being requested before sending full documents; the\nComplainant sent a response stating his request was not about the City's Nextdoor\naccount, but the writings of a City official discussing City business through a specific social\nmedia platform; the City Attorney's office interpreted the statement to mean there was no\ninterest in additional records and why the documents remained as excerpts.\nMr. Shabazz shared his screen verifying the email correspondence with the Assistant City\nAttorney.\nIn response to Vice Chair LoPilato's inquiry, the Assistant City Attorney stated that he\nprovided the excerpted documents because he was unclear at the time whether or not\nthe Complainant was interested in them.\nVice Chair LoPilato inquired what the City's position is on whether a social media\ncommunication could constitute a public record.\nThe Assistant City Attorney responded the City's position is that there is not clear legal\nauthority on the issue; a number of other arguments have been raised that the\nCommission should consider; the City Attorney's office believes the Commission does\nnot need to decide the weighty Constitutional issue, which should be dealt with by the\nLegislature; there is no clear guidance; one of the practical considerations raised in\ndealing with social media being a public record is a retention schedule; gave an example\nof a Snapchat post which disappears immediately and cannot be saved or retained like\nan email message which is retained for three years; the Commission should not be the\nbody to make a decision on such a difficult and weighty Constitutional issue.\nIn response to Chair Tilos's inquiry, the Assistant City Attorney stated for the Nextdoor\naccount owned, retained and maintained by the City, there is very little issue with\nproducing information to any requestor; what is being discussed tonight is a personal\nsocial media account; clarified that the City is not taking the position that the post on the\nCity's account is not a public record.\nVice Chair LoPilato stated that she is aware an agency may rely on an employee to search\ntheir own personal files, accounts and devices for responsive materials; inquired whether\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n4", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 5, "text": "the City received any confirmation that the individual custodian of records conducted such\na search when the City forwarded the request.\nThe Assistant City Attorney responded that he did not personally forward the request and\nis not aware of a response.\nVice Chair LoPilato inquired whether any specific guidance was given to the individual\nwhose personal account communications were sought in terms of what would constitute\na public record in this context or was the request just forwarded.\nThe Assistant City Attorney responded when requests are forwarded to a custodian of\nrecords, training is not provided on the spot; the City provides general Public Records Act\n(PRA) and open government training and relies on the fact that the custodian of records\nhave been trained in some manner or another.\nCommissioner Chen stated five years ago people would tweet without issue; then, policy\nstarted coming through Twitter, a social media tool; she is still taken aback and questions\nwhen tweets became policy statements; Nextdoor allows every owner of an account to\nmake a request of every posting they have made; she followed the instructions to do so\nand was able to get all the postings she has ever made within three minutes; Nextdoor\nmakes it very easy for an individual to recover all their documents by a simple request.\nIn response to Vice Chair LoPilato's inquiry, the Assistant City Attorney stated the City's\nposition was that it did not have actual custody of responsive documents until recently;\nthe City turned over the documents once they were received; the membership agreement\nstates the City does not have constructive possession; the cases the City cited look to the\ncontract and have to do with the subcontractor as a determining factor of whether or not\nthe City had constructive possession; the analogy here is that since the membership\nagreement states the City does not have that ability, the City cannot make the request\nfrom Nextdoor; the City followed the California Supreme Court rulings.\nVice Chair LoPilato inquired the City's position on whether some of the comments by the\nindividual Councilmember, specifically a comment made on January 6, 2021 on the City's\nNextdoor account, would have constituted a public record.\nThe Assistant City Attorney responded as was stated one of the factors determining\nwhether the comment was a public record boils down to whether or not it relates to the\nconduct of the people's business; the records were produced because the City felt they\nwere relevant; he falls back on the position already made that there is no clear guidance\nuntil decided by a Court of competent jurisdiction that has a binding effect on the City.\nVice Chair LoPilato inquired whether there is written policy related to the use of social\nmedia for Councilmembers and Commissioners, to which the Assistant City Attorney\nresponded in the negative; stated he is not aware of a social media policy.\nIn response to Vice Chair LoPilato's inquiry, the Assistant City Attorney stated the\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n5", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 6, "text": "Commission should stand by a position that they had taken in the past to the extent that\nthe doctrine of stare decisis applies; decision 19-02 would not be a precedent because\nthe issue about timeliness was not decided; it was never raised and, therefore, never\ndecided; the notion that the City is bound because timeliness was not previously raised\nis not something the City would ever support.\nVice Chair LoPilato inquired whether the records produced were from the individual\ncustodian of records or from a third party, to which the Assistant City Attorney responded\nthey were from a third party.\nMr. Shabazz stated the email he received was from Alamedanonymous; Anonymous\nAnonymous, is present at this meeting, along with Councilmember Herrera Spencer, so\nit is not likely they are the same person, would suggests the records were not from the\ncustodian of records.\nMr. Shabazz gave a Closing Statement.\nThe Assistant City Attorney, City/Respondent, gave a Closing Statement.\nSpeakers:\nJenice Anderson, Alameda, stated the City needs a new social media policy for\nCouncilmembers; she does not have access and was blocked from using Nextdoor\nwithout an appeals process; she does not know what Councilmembers are doing or the\nbusiness being conducted; other Councilmembers use Twitter, which any members of the\npublic can see; City officials should not be able to use the Nextdoor platform and should\nbe required to produce records of communications, especially if talking about\nconstituents.\nAnonymous stated that he has no relationship to AlamedaAnonymous; he is from San\nFrancisco; quoted State law regarding PRAs; according to State law, the Councilmember\nis a local agency and is required to produce the requested records; urged the Commission\nto resolve the ambiguity in favor of public access.\nMichael Devine, Alameda, stated the term doxing, a criminal act of revealing private\ninformation through hacking or other illegal means, should not be used, as it is\ninflammatory and misleading; the content posted to Nextdoor is not doxing any more than\nthe City releasing the same documents in a prior public records request; because the\nrequestor is anonymous, the source, intent or how information was acquired cannot be\nquestioned; the City should not have produced any documents from the anonymously\nprovided screenshots.\nMonica Price stated the Sunshine Ordinance requires timely access to public records;\npointed out key considerations of the City of San Jose case; urged the Commission to\nbroadly construe that City employees using personal accounts to conduct City business\nare public records.\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n6", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 7, "text": "Jay Garfinkle, Alameda, stated it is dismaying that the City would accept an email from\nAnonymous and egregious to allow Anonymous to address the Commission; the\ndistinction between public record and public domain needs to be clarified; the process is\ndysfunctional; the Commission should provide specific direction to City staff.\nMatt Reid, Alameda, stated there are some interesting parallels with the Morris case\nheard earlier this year; made comparisons between the Garfinkle and Morris cases;\nstated there needs to be a better policy for training elected officials in terms of how they\nbehave in social media while at the same time, respecting the right to privacy; Nextdoor\nis used to amplify information that is also available elsewhere; he does not think it\nconstitutes being disclosed under the PRA.\nAlexia Arocha, Alameda, stated that she supports the Complainant; a request was made;\na timely response was not provided; response was only provided when a complaint was\nmade; trying to use legalese and Constitutional ambiguity is not quite accurate; a City\nofficial discussing City issues on Nextdoor is not considered a private person; she does\nnot agree with the comments made about doxing or about being able to face an accuser;\nthis is not criminal court.\nChair Tilos summarized the complaint and suggested bifurcating the issues.\nVice Chair LoPilato stated it is abundantly clear that there was a violation in that the City\nfailed to respond timely; enforcing the Sunshine Ordinance statute of limitations would\nonly generate more complaints and disincentivise back and forth discussion between City\nstaff and the requestor; if the Commission has to dismiss the first claim as potentially\ntime-barred, a written decision should probably include a recommendation to the City\nabout how to deal with the issue.\nChair Tilos stated he concurs with Vice Chair LoPilato about encouraging more follow up\nbetween City staff and requestors; he wishes that the City Attorney's office and the\nComplainant could have come to a resolution before five months went by to avoid a\ncomplaint being filed.\nCommissioner Montgomery stated the case is difficult because of the time constraints for\nboth parties; the City did not respond timely and the Complaint was not filed within the\nrequired time period; there should be comments regarding how it should be done in the\nfuture.\nChair Tilos stated one of the decision options is Complaint dismissed due to jurisdictional\nor procedural grounds.\nIn response to Commissioner Montgomery's inquiry, the Chief Assistant City Attorney\nstated one option the Commission has under the newest revision of the Sunshine\nOrdinance, specifically Subsection D of 2-93.2 states: the Commission may also\nconsider options for informal resolutions of complaint to avoid similar violations;' options\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n7", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 8, "text": "could include changing the Sunshine Ordinance to provide for additional time or pull the\nstatute of limitations to encourage discussion instead of filing a Complaint; the options\nwould fall in the category of informal resolution; the Commission would have the ability to\nmake informal, non-binding recommendations, even if a portion of the complaint is found\nto be time-barred.\nThe City Clerk stated the issue occurred before the new system, NextRequest, was in\nplace; the human error of miscommunication cannot happen with NextRequest because\neverything is documented in the system and nothing can fall through the cracks.\nChair Tilos stated it is nice to see improvements happening since there have been a lot\nof issues with PRAs.\nCommissioner Chen stated if the City did not respond in the 10 days, it is a de facto\nviolation whether or not anyone complains.\nCommissioner Montgomery stated according to the rules and regulations, it is not on the\nComplainant to keep nudging for a response.\nVice Chair LoPilato stated, as a point of order, time limits were not written into the\nprocedure for deliberation on Complaints; there is room for flexibility.\nChair Tilos concurred with Commissioner Montgomery's comments; stated seeing even\none friendly reminder or follow-up with the City may have avoided the complaint and\nhearing.\nCommissioner Chen moved approval of sustaining the Complaint without a Cure and\nCorrect since the City has a cure with the new software.\nIn response to Commissioner Chen's motion, Vice Chair LoPilato stated that she is\nstruggling with the fact that there is a statute of limitations in the Sunshine Ordinance; she\ndoes not like it, especially with regard to PRAs; the Commission should frame whatever\ndecision is made with some acknowledgement of the statute of limitations.\nThe Chief Assistant City Attorney stated the Sunshine Ordinance is complaint driven and\nviolations are found after being raised by a complaint; the Commissioners should be\naware and guided by the statute in this case; because the City has forcefully raised the\nstatute of limitations argument, she highly urges the Commission to figure out a way to\naddress the statute of limitations and to marry it with the facts for the decision; years from\nnow, people may wonder how a complaint that was brought up five plus months after it\nripened into a complaint was able to be heard by the Commission; if the Commission is\ninclined to find a violation, the statute of limitations should be addressed.\nCommissioner Chen withdrew her motion.\nIn response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated the\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n8", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 9, "text": "mechanics and administration of complaints starts with the City Clerk's office; the Clerk's\noffice is the recipient of the initial complaint and informs the City Attorney's office\nimmediately about it.\nThe City Clerk stated upon receipt of the complaint, she reached out to the Complainant\nto see if the matter could be resolved outside of bringing it before the Commission; she\nwas not aware of any jurisdictional issues and was not told not to put it on the agenda;\napologized if it was an error on her part.\nChair Tilos inquired who would make the determination as to whether or not there are\njurisdictional issues and what is the process.\nThe City Clerk responded if it were 15 days after a meeting occurred, she would be very\nclear on the date; she was not looking for a date since the Complainant had not received\na response.\nCommissioner Montgomery moved approval of dismissing the complaint based on\njurisdictional grounds because of the timing.\nChair Tilos stated he would like to make a friendly amendment to the motion to include\nthat the Commission informally address that a violation did occur with regard to timing;\nno response within 10 days.\nVice Chair LoPilato made another friendly amendment to Chair Tilos's amendment to\ninclude a factual finding that a violation did occur based on the undisputed statements of\nthe parties and also include a recommendation for informal resolution of complaints\nregarding PRA requests to which no response was given; the City should consider\nautomatically tolling the statute of limitations for PRA related complaints until the time in\nwhich an eventual response to the request is actually provided to the requestor to allow\nsufficient time for informal resolution.\nIn response to Commissioner Montgomery's requests for a summary of the amendments,\nChair Tilos stated that he concurs with Vice Chair LoPilato's amendments minus the\nrecommendation.\nVice Chair LoPilato accepted Chair Tilos's reasoning; stated the recommendation could\nbe included in an implementation report if the Commission is more comfortable with doing\nso.\nCommissioner Montgomery accepted the friendly amendments.\nChair Tilos seconded the motion, which carried by the following roll call vote:\nCommissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: Aye; Chair Tilos: Aye.\nAyes: 5.\n***\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n9", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 10, "text": "Chair Tilos called a recess at 9:06 p.m. and reconvened the meeting at 9:12 p.m.\n***\nChair Tilos summarized part two of the complaint regarding the City's response to the\nNextdoor issue.\nCommissioner Montgomery stated she needs more clarification on what constitutes City\nwork as opposed to a personal statement made by a Councilmember on any social\nplatform.\nIn response to Vice Chair LoPilato's inquiry regarding whether the City of San Jose case\ncould be used as guidance, the Chief Assistant City Attorney stated the case law statutes\nhave not caught up yet with reality and social media; the City of San Jose case is\ninstructive, but it is not precedent in the sense that it does not address the situation here;\nthe Commission is trying to grapple with the issue of whether or not the private social\nmedia of a public official is a public record; the law does not give a lot of guidance; cases\nfrom an Appellate Court or Supreme Court in California do not exist yet; the factors\nprovided in the City of San Jose case evaluate whether or not certain communications\nconstitute public records.\nChair Tilos stated as a non-lawyer, his thought process is what could the City have\nprovided; he is not comfortable making a decision based on what the Chief Assistant City\nAttorney's statement regarding unchartered territory; the City Attorney's office and City\nCouncil should give the Commission guidance; the City's account is open; information\nshould have been provided.\nCommissioner LoPilato stated the issue is an emerging legal area; the Commission\nmaking precedent decisions regarding social media disclosures would probably be\nimproper; the language in the San Jose case which she cited is a bit more permissive as\nto what analysis the Commission could undertake tonight; however, she thinks Chair\nTilos's comments are well taken into consideration and the Commission may not need to\ngo in that direction; stated there is a reference in the Assistant City Attorney's October\n28th email about a record being apparent on the City's official agency account; a question\ncould be whether that implicit admission is a record and should have been produced\nbefore the complaint was filed.\nChair Tilos stated that he takes timing into consideration as well; he does not want to see\ncomplaints brought forth from three years ago; the complaint could have been triggered\nsooner than five months; he understands there are a lot of moving pieces.\nVice Chair LoPilato stated that she would argue the complaint was timely; the statute of\nlimitations was not triggered until the requestor is informed of whether a response was\nprovided.\nCommissioner Montgomery stated the clock does not start ticking until there is an actual\nresponse; the Complainant did not know he could not get what he wanted until a response\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n10", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 11, "text": "was provided.\nIn response to Chair Tilos, Commissioner LoPilato stated the question is when could the\nComplainant have known when they actually had a claim to bring; with Claim 1, the City\ndid not respond in ten days, which he knew on day 11; with Claim 2, he could not have\nknown that there were no responsive documents until the City told him.\nChair Tilos concurred with Vice Chair LoPilato and Commissioner Montgomery that\ntimeliness is not a factor and can be struck to address the social media piece.\nCommissioner Chen stated the Complainant did not know until October 19th when he\nreceived an email from the City informing him that there were no records.\nCommissioner Reid stated she agrees with all Commissioners; something to discuss is\nwhat would constitute the conduct of public business.\nChair Tilos stated if the City has its own account for blasting information to members of\nthe public and a public official comments, it would be considered a public record; if the\npublic official makes comments on a personal account, outside of the City's lane, he does\nnot want to make a determination about that and needs guidance.\nCommissioner Montgomery stated that she is leaning towards whatever happens on\nsocial media should be considered public record; if one Commissioner posted on a City\nmatter and two other Commissioners responded, the three members responding would\nconstitute a City meeting and be conducting City business.\nIn response to Chair Tilos's inquiry, Commissioner Montgomery stated discussing issues\non social media that are coming on an agenda is City business.\nChair Tilos stated that he does not want to go down the rabbit hole and make a statement\nor determination about what is considered City business and what is not.\nThe Chief Assistant City Attorney stated that she cautions the Commission to address\nwhat is actually in the complaint; in the communication between the Complainant and the\nAssistant City Attorney, the Complainant stated he was interested in statements made in\nthe private social media account of Councilmember Herrera Spencer; the Commission is\nbeing asked to decide whether or not the City, in telling the Complainant to deal directly\nwith Nextdoor for the information he requested, is a violation of the PRA; the question is\nwhether there is a requirement by the City to go to Nextdoor or do something else to get\nthe information for the Complainant.\nVice Chair LoPilato stated that she respects the delineation made by the Chief Assistant\nCity Attorney if the Commission goes in that direction; any Commission decision should\nstate it was upon guidance from the City Attorney's office; the Complainant believes the\ncommunications by Councilmember Herrera Spencer on Nextdoor are subject to the\nPRA; while she understands there was back and forth after the complaint was filed, she\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n11", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 12, "text": "is uncomfortable narrowing the scope of what is being addressed.\nChair Tilos stated the Complainant was open about wanting everything with no\ndelineation.\nThe Chief Assistant City Attorney stated she appreciates Vice Chair LoPilato's comments;\nin Attachment 2 of the City's position, there is communication that the City Clerk attempted\nto resolve the issue before a complaint was filed; Mr. Shabazz stated the City did not take\nthe next step in contacting either Nextdoor or the City official in order to get the records\nhe requested; his complaint stems from what he views as an insufficient effort by the City\nto obtain the records.\nCommissioner Chen stated that she asked the Assistant City Attorney if he asked the\ncustodian of records to produce any responsive records; the Assistant City Attorney said\nthat he asked Councilmember Herrera Spencer a day after he received the request in\nApril; inquired whether the City vets documents before release.\nThe Chief Assistant City Attorney stated in the process of evaluating and obtaining\nrecords, the City does vet documents to make sure there is no personal information or\nanything not related to City business, which would be redacted; the balance would be\ndisclosed.\nCommissioner Chen inquired what happens if the City official does not produce records.\nThe Chief Assistant City Attorney responded the general rule is that the City takes the\npublic official at their word; if they state they do not have any responsive records, it is\npermissible for the City to rely on that statement; the rule is used to address requests for\nprivate emails and texts and does not yet apply to social media.\nCommissioner Chen stated her assumption, based on the Assistant City Attorney's\nresponse, is that there were no records to produce; if the screenshots were accurate and\ncould be proven, it seems the official did not present the documents.\nChair Tilos stated the accuracy of the screenshots is not in the Commission's purview.\nCommissioner Chen stated if the City can obtain personal emails and texts of City\nemployees and officials, anything posted on social media seems to be even more broad;\nwith reference to the January 6, 2021 Capitol incident, a lot of social media is being used\nin cases; law is formulating and social media could be considered public record in the\nfuture.\nVice Chair LoPilato concurred with Commissioner Chen that laws relating to social media\nare definitely moving in that direction; giving guidance and training to officials with a lens\non open government is valuable; comments on the City's Nextdoor account on January\n6th in which Councilmember Herrera Spencer urges the public to vote on a specific\nagenda item is concrete example as a record responsive to the complaint; the City had\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n12", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 13, "text": "access on its account and it was public record.\nThe Chief Assistant City Attorney inquired whether Vice Chair LoPilato's rationale for\nfinding a violation was that the record was not produced at the time Mr. Shabazz filed his\ncomplaint, to which Vice Chair LoPilato responded in the affirmative, stated it does seem\nlike a viable basis to say there was a violation.\nIn response to Chair Tilos's inquiry, Commissioner Montgomery stated that she is leaning\ntoward sustaining the complaint; she does not feel like the Complainant received the\navailable documents.\nChair Tilos stated that he is leaning towards a cure and correct that the Commission\nneeds more guidance to interpret between public and personal accounts.\nIn response to Chair Tilos's inquiry, the Chief Assistant City Attorney stated there are two\ndifferent potential violations: 1) whether or not the agency posts were timely produced,\nand 2) whether the City did all it could do to track down and produce the information\nrequested; there are potentially two separate cure and corrects; requesting guidance\nwould be helpful and valuable, but harder to manufacture since there are no laws yet; a\ncure and correct to get agency postings is easier to fashion.\nVice Chair LoPilato stated that she likes the delineation of whether there was a violation\nof the agency account versus the private account; she is prepared to make a motion;\ninquired whether the reference to the City encompasses the individual official as an agent\nof the City and is there a way to parse that.\nThe Chief Assistant City Attorney stated the question is difficult; neither party briefed the\nquestion and she does not have either party's perspective; the complaint did not address\nthe violation on behalf of the individual; the violation was addressed against the City and\nargues that the City did not do what it was supposed to do vis a vis the PRA and Sunshine\nOrdinance; if the question is whether there could be a separate complaint against an\nindividual, that is not what is before the Commission now and she is reluctant to say that\ncould happen.\nVice Chair LoPilato stated that she is not going in that direction so much as she is hoping\nto delineate that City staff did all they could do with respect to producing records given\nthat no records were provided to them by the individual; the clarification would be\nimportant in order not to endorse the act of not responding to the City's request to provide\npersonal account information.\nChair Tilos stated the City Attorney asked the official to produce it, but the Commission\ndoes not have teeth to enforce it.\nVice Chair LoPilato moved approval of sustaining the complaint on the basis that there\nwas a violation in that the City was the custodian of an agency Nextdoor account which\ncontained comments by a Councilmember using the Nextdoor social media platform,\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n13", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 14, "text": "which were responsive to the PRA request that were not produced prior to the complaint;\nshe would add that the Commission makes no findings whether there was a violation of\nthe PRA with respect to producing records from a Councilmember's personal account on\nthe basis that, with the evidence presented, the City took steps to obtain the records but\nultimately no analysis was able to be conducted as to whether there were any public\nrecords.\nIn response to Chair Tilos's inquiry, Vice Chair LoPilato stated the reason the motion is\nnot concise is that the Commission needs to write the reason of decision statement, which\nshould include all the basis for the findings; it can be a tighter motion, but the Chief\nAssistant City Attorney needs sufficient basis for the decision.\nVice Chair LoPilato moved approval of sustaining the complaint on the basis of the\nviolation that the City failed to produce records from the Agency Nextdoor account.\nIn response to Chair Tilos's inquiry regarding the cure and correct, Vice Chair LoPilato\nstated the Commission could address recommendations on both issues; suggested\nseeing if there is consensus on the sustained part first.\nChair Tilos stated he would be agreeable without a cure and correct.\nVice Chair LoPilato stated that she thinks there is a very specific cure and correct the\nCommission could issue with respect to the finding; the cure and correct can be discussed\nafter everyone is aligned with the finding.\nCommissioner Montgomery seconded the motion which carried by the following roll call\nvote: Commissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: Aye; Chair Tilos:\nAye. Ayes: 5.\nVice Chair LoPilato stated to ensure the scope is narrow and case law is not being\nmanufactured, a reference should be made that the City Attorney's office referred to a\nrecord produced on October 28th; the Commission relying on that as opposed to the\nCommission making an independent finding of law as to whether or not it was a record is\nsignificant; further recommended that the City consider maintaining an index that is\naccessible to the City Clerk and City Attorney's offices of all social media accounts\nmaintained as an official communications channel of the City; stated the City should\nevaluate whether comments should be disabled on the City account, as comments could\nincrease the likelihood of a Brown Act violation on a platform which appears not to be\ncarefully monitored by the City.\nChair Tilos concurred with Vice Chair LoPilato's statements and recommendations\nVice Chair LoPilato stated the Commission could offer up Recommendation 1 to be\nincluded with the decision; separately, the Commission should consider practical training\nthat might be useful for Board members and Councilmembers, which could be done\nthrough the implementation report and is an action the Commission should take to\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n14", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 15, "text": "address the issues in the complaint.\nCommissioner Montgomery inquired whether the Complainant included a\nrecommendation for cure and correct in his complaint, to which Chair Tilos responded in\nthe affirmative; stated the Complainant included several cure and correct\nrecommendations.\nVice Chair LoPilato stated the Complainant's recommendations are on Page 14 of Exhibit\n2, Respondent's Statement.\nCommissioner Montgomery inquired whether the Commission addressed any of the\nspecific items in the statement.\nChair Tilos responded that he likes the way it is and does not want to open it up.\nVice Chair LoPilato suggested the recommendations regarding training and policies be in\na follow up report, which would be a good place to revisit and think about the\nComplainant's suggestions.\nChair Tilos concurred; stated issues come back after getting feedback from the\nComplainant as well as an agenda item and have public comments.\nCommissioner Chen stated that she is going to fix up the report on how to improve\noperations and what is needed from the City Council to help navigate new territory for\neither January or February; maybe the ideas can be included.\nCommissioner Montgomery stated that works for her.\nVice Chair LoPilato suggested the finding for Claim 1 include a positive statement that\nthe likelihood of communication errors would be resolved by the implementation of the\nNext Request system.\nThe Chief Assistant City Attorney inquired whether there was consensus on the\nrecommendations or if a vote is required.\nIn response to Commissioner Montgomery's inquiry, the Chief Assistant City Attorney\nstated there were no recommendations as part of the first finding.\nVice Chair LoPilato stated the Commission discussed the prospect of recommendations,\nbut agreed to table them.\nThe City Clerk inquired whether the direction to add a positive statement about the Next\nRequest system was a direction by consensus, to which Chair Tilos responded in the\naffirmative.\nThe City Clerk stated the main recommendation for Claim 2 is the list of social media\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n15", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 16, "text": "accounts.\nCommissioner Reid suggested pulling Item 4-B.\nREGULAR AGENDA ITEMS\n4-A. Minutes of the November 1, 2021 Meeting\nCommissioner Chen moved approval of the minutes.\nCommissioner LoPilato seconded the motion, which carried by the following roll call vote:\nCommissioners Chen: Aye; LoPilato: Aye; Montgomery: Aye; Reid: Aye; Chair Tilos: Aye.\nAyes: 5.\n4-B. Consider Amending the Sunshine Ordinance Complaint Form. Not heard.\nSTAFF UPDATE\nNone.\nCOMMISSION AGENDA REQUESTS\nNone.\nCOMMISSION COMMUNICATIONS\nNone.\nNON-AGENDA PUBLIC COMMENT\nMichael Devine, Alameda, discussed cyber bulling and Tweeting pictures of Art Garfunkle\nbeing anti-Semitic behavior; suggested the Commission consider reversing any rulings\nand dismissing Mr. Shabazz's complaint.\nAnonymous stated he worked with Commissioner Reid on the complaint form and hopes\nthe Commission takes it on; expressed support for protecting the public's rights to access.\nADJOURNMENT\nChair Tilos adjourned the meeting at 10:30 p.m.\nRespectfully submitted,\nLara Weisiger\nCity Clerk\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n16", "path": "OpenGovernmentCommission/2021-12-06.pdf"}
{"body": "OpenGovernmentCommission", "date": "2021-12-06", "page": 17, "text": "The agenda for this meeting was posted in accordance with the Sunshine Ordinance.\nMeeting of the\nOpen Government Commission\nDecember 6, 2021\n17", "path": "OpenGovernmentCommission/2021-12-06.pdf"}