pages: OpenGovernmentCommission/2021-12-06.pdf, 10
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OpenGovernmentCommission | 2021-12-06 | 10 | Chair Tilos called a recess at 9:06 p.m. and reconvened the meeting at 9:12 p.m. *** Chair Tilos summarized part two of the complaint regarding the City's response to the Nextdoor issue. Commissioner Montgomery stated she needs more clarification on what constitutes City work as opposed to a personal statement made by a Councilmember on any social platform. In response to Vice Chair LoPilato's inquiry regarding whether the City of San Jose case could be used as guidance, the Chief Assistant City Attorney stated the case law statutes have not caught up yet with reality and social media; the City of San Jose case is instructive, but it is not precedent in the sense that it does not address the situation here; the Commission is trying to grapple with the issue of whether or not the private social media of a public official is a public record; the law does not give a lot of guidance; cases from an Appellate Court or Supreme Court in California do not exist yet; the factors provided in the City of San Jose case evaluate whether or not certain communications constitute public records. Chair Tilos stated as a non-lawyer, his thought process is what could the City have provided; he is not comfortable making a decision based on what the Chief Assistant City Attorney's statement regarding unchartered territory; the City Attorney's office and City Council should give the Commission guidance; the City's account is open; information should have been provided. Commissioner LoPilato stated the issue is an emerging legal area; the Commission making precedent decisions regarding social media disclosures would probably be improper; the language in the San Jose case which she cited is a bit more permissive as to what analysis the Commission could undertake tonight; however, she thinks Chair Tilos's comments are well taken into consideration and the Commission may not need to go in that direction; stated there is a reference in the Assistant City Attorney's October 28th email about a record being apparent on the City's official agency account; a question could be whether that implicit admission is a record and should have been produced before the complaint was filed. Chair Tilos stated that he takes timing into consideration as well; he does not want to see complaints brought forth from three years ago; the complaint could have been triggered sooner than five months; he understands there are a lot of moving pieces. Vice Chair LoPilato stated that she would argue the complaint was timely; the statute of limitations was not triggered until the requestor is informed of whether a response was provided. Commissioner Montgomery stated the clock does not start ticking until there is an actual response; the Complainant did not know he could not get what he wanted until a response Meeting of the Open Government Commission December 6, 2021 10 | OpenGovernmentCommission/2021-12-06.pdf |