Doug Comstock, Chair
Members of the Complaint Committee
c/o Donna Hall, Administrator
Sunshine Ordinance Task Force
Room 409, City Hall
Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4689

Re: Oliver Luby and Kevin De Liban v. Ethics Commission

Dear Chair Comstock and Members of the Complaint Committee:
This letter addresses the issue of whether the Sunshine Ordinance Task Force ("SOTF") has jurisdiction over the complaint of Oliver Luby and Kevin De Liban against the San Francisco Ethics Commission
BACKGROUND
On January 2, 2004, a secretary of the law firm of Sutton and Partners, inadvertently sent an e-mail with attachments to the Ethics Commission ("Commission"). The attachments contained draft reports of moneys paid to campaign consultants from the Swearing-In / Inaugural Committee of Mayor-Elect Gavin Newsom. The report was neither requested nor required by the Commission. The law firm upon discovering its mistake, called the Commission and asked that the e-mail and attachments be destroyed or deleted. The Commission's Executive Director and Deputy Director ordered that the e-mail be deleted by the employees ("Complainants") who initially received the information, however the Complainants refused citing possible violations of the Sunshine Ordinance and Public Records Act. According to the Commission's Executive Director, the City Attorney's Ethics Team opined that the e-mails could be deleted. When the Complainants again refused to delete the information from their computers, the Executive Director personally deleted the information from the Complainants' computers. The Complainants saved the information on hardcopy form and filed a Sunshine Complaint with the Sunshine Ordinance Task Force.
COMPLAINT
Complainants allege that the Ethics Commission violated the Sunshine Ordinance and the California Public Records Act by deleting the e-mail and attachments that were sent by Sutton and Partners.
SHORT ANSWER
It can be argued that on the face of Section 67.29-7 of the Sunshine Ordinance that the Sunshine Ordinance Task Force has jurisdiction over the complaint. However, when analyzing of the meaning of Section 67.29-7 through a review of Chapter 8 of the Administrative Code, Section 6252 of the California Public Records Act, and California Appellate decisions interpreting the meaning of records, it appears that the Task Force does not have jurisdiction over the complaint because the documents are not records requiring retention as defined by both the San Francisco Administrative Code and the State Government Code.
DISCUSSION AND ANALYSIS
The Sunshine Ordinance is located in the San Francisco Administrative Code Chapter 67. All statutory references, unless stated otherwise, are to the Administrative Code.

Section 67.29-7(a) provides:
(a) The Mayor and all Department Heads shall maintain and preserve in a professional and businesslike manner all documents and correspondence, including but not limited to letters, e-mails, drafts, memorandum, invoices, reports and proposals and shall disclose all such records in accordance with this ordinance.

A literal reading of section 67.29-7(a) would mean that all documents, and correspondence, including but not limited to letters, e-mails, drafts, memorandum, invoices, reports and proposals that were not generated by the Department Head or the department, but were received by the Department Head must be kept, even though the documents were not requested by the Department Head and may have no relevance to the operation of the department. An example of unsolicited documents could be promotional material or advertisements. To keep unsolicited irrelevant material would place an unreasonable burden on the Department. That is the reason why the City requires Department Heads to establish record retention policies. Section 67.29-7(a) must be read in the context of the City's retention policy, the Commission's retention policy, the California Public Records Act, and Court cases that have interpreted statutory sections.

In many cases the courts have interpreted the meaning of statutory sections. The fundamental task of statutory interpretation is to determine legislative intent. See White v. Ultramar, Inc., 21 Cal. 4th 563, 572 (1999). To do so, courts look first to the language of the law, giving the words their ordinary, everyday meaning. See Halbert's Lumber, Inc v. Lucky Stores, Inc.,6 Cal. App. 4th 1233, 1238 (1992). If the language is ambiguous or uncertain, courts then turn to extrinsic evidence, including legislative history. See id. At 1239. The courts read the words in a manner that makes them reasonable and avoids absurd results. See id.

In addition, the California Court of Appeals in the case of Chaffee v. San Francisco Library Commission et al, (filed 1/29/04, Superior Court case number 408077, Appellate Court case number A102550) stated:

In determining the meaning of a statute, we are guided by settled principles of statutory interpretation. "The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]" (People v. Pieters (1991) 52 Cal.3d 894, 898 (Pieters).) To determine this intent, we begin by examining the words of the statute. (Ibid.) We must follow the construction that "comports most closely with the apparent intent of the Legislature, with a view to promoting rather defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." (People v. Jenkins (1995) 10 Cal.4th 234, 246.) Further, we must read every statute, " 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness'". (Pieters, supra, 52 Cal.3d at 899.)

In this case Section 67.29-7(a) uses the term "records" as the catch all word for documents and correspondence that must be disclosed upon request. This section was drafted as part of a citizen's initiative process and there is no legislative history to review. A clear description of the term "records" is found in Chapter 8, Sections 8.1 through 8.3 of the San Francisco Administrative Code. These sections generally govern record retention and destruction policies.

The applicable sections follow:

SEC. 8.1. "RECORDS" DEFINED.
"Records," as used in this Chapter, shall mean such paper, book, photograph, film, sound recording, map, drawing or other document, or any copy thereof, as has been made or received by the department in connection with the transaction of public business and may have been retained by the department as evidence of the department's activities, for the information contained therein, or to protect the legal or financial rights of the City and County or of persons directly affected by the activities of the City and County. (Ord. No. 7070 (1939), Sec. 1)
SEC. 8.2. RESPONSIBILITY FOR PRESERVATION AND FILING OF RECORDS.
The head of every department shall be responsible for the preservation and proper filing of papers, film or other records of the department and the ultimate disposition of the same in accordance with the applicable law. (Ord No. 7070 (1939), Sec. 1; amended by Ord. 530-88, App. 12/16/88)
SEC. 8.3. RETENTION AND DESTRUCTION OF RECORDS GENERALLY.
It shall be the duty of each department head to classify the department's records, using the classifications set forth in Section 8.4 of this Code, and to prepare a schedule for the systematic retention and destruction of such records, which schedule shall comply with the provisions of this Section and of Sections 8.4 and 8.9 of this Code and will be effective only upon approval by the officers and boards specified below.
Current records and storage records, as defined in Section 8.4 of this Code, may be destroyed five years after they were created if they have served their purpose and are no longer required for any public business or other public purpose, except that records pertaining to financial matters shall be destroyed only after approval by the Controller; those having legal significance only after approval by the City Attorney; and payroll checks, time cards and related documents only after approval by the Retirement Board.
The above sections in Chapter 8 clearly limit what types of documents are determined to be records. In addition Section 6252(e) of the California Government Code (the State Public Records Act) defines "public records" as follows:

"Public records" includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

In this case the documents at issue were not generated by the Commission Director or the Commission. The documents were not requested by the Commission and were not at that time relevant to any filing that had been done by Sutton & Partners. However, the Complainants argue that the documents are relevant because they may be used to impeach or contradict any subsequent filing by Sutton & Partners. This argument must be assessed in relation to case law interpreting relevant statutory sections.

Courts have a duty to harmonize statutory provisions that are in tension with one another. (Ziesmer v. Superior Court 107 Cal.App.4th 360, 366 (2003)). Further, when harmonizing a specific statutory provision with a general provision, courts favor the specific provision over the general if possible. (San Francisco Taxpayers Association v. Board of Supervisors 2 Cal.4th 571, 577 (1992)). Here the definition of "records" is clearly defined in Chapter 8 of the Administrative Code and also defined in Section 6252(e) of the Government Code.

The following cases provide examples of what records California Courts have found are or are not subject to disclosure:

Coldwell v. Board of Public Works 187 Cal. 510 (1921)
This action was brought by a citizen of the City and County of San Francisco who sought a writ of mandate to compel defendant, Board of Public Works, to allow him to review and make copies of the documents relating to the Hetch Hetchy project, including plans, specifications, reports, contracts, estimates, certifications, receipts and field notes. The court held that preliminary estimates and other preliminary documents in the office of a city engineer were not public records. The court reasoned that "they were not of such a character as would constitute them public records since until they received some approval they could no be considered the act, or the record of an act by the city engineer or the board of public works. Since the engineer testified that he doesn't allow anything to leave his office without his approval (he had not approved the preliminary estimates), the preliminary estimates had not "attained the character and dignity of completed acts or documents of any kind until approved." Id. at 519-520.

Braun v. City of Taft 154 Cal.App.3d 332 (1984)
In Braun, a city councilman brought an action seeking a declaration that certain records relating to the employment of a city firefighter were public records subject to disclosure under CPRA. The court held that the letters, one appointing a firefighter to the position of transit administrator, and the other rescinding the appointment, were public records and were not exempt from disclosure under Gov. Code section 6254 which exempts personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy. The file contained the employee's name, address, phone number, and social security number. The court reasoned that "the mere custody of a writing by a public agency does not make it a public record, but if a record is kept by an officer because it is necessary or convenient to the discharge of his official duty, it is a public record." at 340. Here the record undoubtedly pertained to the city's business as it documented the appointment of a city employee. The court also rejected the contention that the record was exempt from disclosure because on the facts of this particular case the public interest served by making the record public clearly outweighs the public interest served by refusing disclosure of the record.' (as provided in section 6255).

California State University, Fresno v. The Superior Court of Fresno County 90 Cal.App.4th 810 (2001)
In California State University, Fresno, a newspaper company filed a petition for a writ of mandate , seeking to compel a state-university and a university-affiliated non-profit auxiliary corporation to disclose documents which contained the identities of donors who, upon making donations to the non-profit corporation, received licenses to use luxury boxes in the arena that was to be built on campus. The court held that the documents were public records since they were unquestionably used or retained by the University, and they clearly relate to the public's business, specifically the operation of the arena, a public facility funded in part by public funds, and located on land owned by a public university.

In this case the Complainants state that the e-mail accidentally sent to Mr. De Liban most appropriately fits into the category of "Correspondence", which is in Category 5 of the Ethics Commission Retention Policy ("Policy"). Complainants concede that Category 5 of the Policy generally requires no retention. Complainants further concede that the Policy states that original and duplicate documents and other materials that are not essential to the functioning or continuity of the Commission and that have no legal significance may be destroyed. However, Complainants argue that the documents that were deleted could possibly have legal significance in the future and therefore should not have been destroyed.

Underlying the argument for classification of the document in question as a public record is the contention that the document could be of legal significance in the near future. The scenario envisioned by the Complainants is that Sutton and Partners would file a certified disclosure that is inconsistent with the document that was accidentally sent to the Ethics Commission and the accidentally received document would be probative of inconsistencies in reporting the expenditures of the Swearing-in Committee. However, the probative value of this document in relation to this hypothetical situation is very low, considering the manner in which it was generated and its contents disclosed to the Ethics Commission.

The document was, at the time of its accidental transmission to the Ethics Commission, being circulated internally by employees of Sutton and Partners. This internal circulation was meant to afford the partners and other employees a chance to review the document for errors before it was finalized. The e-mailed document was in fact meant for a partner to review before the document was sent to the Ethics Commission. Since the document was unable to be reviewed by parties that would, if errors were found as a result of a later filing, be "on the hook" for the discrepancies, the probative value of the document is significantly diminished by the fact that it was never certified or reviewed by those parties. Because the hypothetical probative value of this document is diminished or non-existent, the document would have very little or no legal significance. Because legal significance is a factor in determining destructibility of documents pursuant to the City's retention policy under San Francisco Administrative Code Chapter 8, and the Commission's Retention Policy the documents were not required to be retained by the Commission.

Based upon the above analysis, the documents were not records that needed to be retained pursuant to Section 67.29-7(a) and the Executive Director was authorized to delete such documents. Therefore, the Complaint Committee should conclude that the Task Force does not have jurisdiction to hear this complaint.

Very truly yours,

DENNIS J. HERRERA
City Attorney

Ernest H. Llorente
Deputy City Attorney

cc: Garrett Jenkins, Chair of the SOTF