pages: OpenGovernmentCommission/2021-12-06.pdf, 5
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OpenGovernmentCommission | 2021-12-06 | 5 | the City received any confirmation that the individual custodian of records conducted such a search when the City forwarded the request. The Assistant City Attorney responded that he did not personally forward the request and is not aware of a response. Vice Chair LoPilato inquired whether any specific guidance was given to the individual whose personal account communications were sought in terms of what would constitute a public record in this context or was the request just forwarded. The Assistant City Attorney responded when requests are forwarded to a custodian of records, training is not provided on the spot; the City provides general Public Records Act (PRA) and open government training and relies on the fact that the custodian of records have been trained in some manner or another. Commissioner Chen stated five years ago people would tweet without issue; then, policy started coming through Twitter, a social media tool; she is still taken aback and questions when tweets became policy statements; Nextdoor allows every owner of an account to make a request of every posting they have made; she followed the instructions to do so and was able to get all the postings she has ever made within three minutes; Nextdoor makes it very easy for an individual to recover all their documents by a simple request. In response to Vice Chair LoPilato's inquiry, the Assistant City Attorney stated the City's position was that it did not have actual custody of responsive documents until recently; the City turned over the documents once they were received; the membership agreement states the City does not have constructive possession; the cases the City cited look to the contract and have to do with the subcontractor as a determining factor of whether or not the City had constructive possession; the analogy here is that since the membership agreement states the City does not have that ability, the City cannot make the request from Nextdoor; the City followed the California Supreme Court rulings. Vice Chair LoPilato inquired the City's position on whether some of the comments by the individual Councilmember, specifically a comment made on January 6, 2021 on the City's Nextdoor account, would have constituted a public record. The Assistant City Attorney responded as was stated one of the factors determining whether the comment was a public record boils down to whether or not it relates to the conduct of the people's business; the records were produced because the City felt they were relevant; he falls back on the position already made that there is no clear guidance until decided by a Court of competent jurisdiction that has a binding effect on the City. Vice Chair LoPilato inquired whether there is written policy related to the use of social media for Councilmembers and Commissioners, to which the Assistant City Attorney responded in the negative; stated he is not aware of a social media policy. In response to Vice Chair LoPilato's inquiry, the Assistant City Attorney stated the Meeting of the Open Government Commission December 6, 2021 5 | OpenGovernmentCommission/2021-12-06.pdf |