News

Atherton video remains online despite complaint

 

A video of an Aug. 20 meeting in Atherton Town Hall between the city manager and three unhappy members of the public seeking public records remains on YouTube despite a privacy complaint by a town staff member and YouTube's threat to remove it.

The 8.5-minute video was posted by Atherton resident Jon Buckheit, who recorded the sometimes testy exchange between City Manager Jerry Gruber and a trio of aggrieved members of the public: himself, resident Kimberly Sweidy, and former finance director John Johns. All three have sued or are on the verge of suing Atherton for a range of complaints.

On Monday afternoon, Aug. 23, Mr. Buckheit received a message from the YouTube Support group notifying him that YouTube had "received a privacy complaint from an individual regarding your content."

"We would like to give you an opportunity to remove or edit your video so that it no longer potentially violates the privacy of the individuals involved," the message said.

As it turned out, the complaint was filed by staff member Melanie Brabenec, who works in the front office of Town Hall. Brabenec would not comment for this article. Gruber did not return a phone call and an e-mail request for comment.

Facing a 48-hour deadline for resolving the matter, Buckheit began an e-mail exchange with Gruber: "I look forward to a productive dialog on this issue that can resolve the possible conflict of rights that was created by the YouTube privacy complaint," Buckheit wrote midday on Tuesday.

Gruber's response an hour and a half later revealed who filed the complaint, but subsequent requests by Buckheit for more information went unanswered. In addition to asking for more information, Buckheit offered a course of action: "If (Brabenec) would like to withdraw the privacy complaint ... I will waive any possible claims I may have against her or the town of Atherton ... ."

Early Wednesday afternoon, Buckheit began an e-mail to Gruber: "The silence on your part in response to my reasonable requests for clarification has been deafening." And in conclusion: "Are you willing to respond to these messages at this point, or are you going to force another matter to litigation that didn't need to go there?"

Because the video remains online (as of 5 p.m. Thursday), the question may remain unanswered. But if YouTube removes it because of the complaint, "I plan to, as a first step, give (Gruber) one more chance to respond and take corrective action."

He said the removal of the video would be a violation of his free speech rights to publish a recording of public employees performing public duties in a public space.

The video was made after Buckheit, Sweidy and Johns went to the building department on Aug. 20 to inspect documents that had been requested previously through written public records act requests; they were told by staff they needed to take their requests to the administrative office, and once there, Buckheit began videotaping.

The California Public Records Act requires public agencies to make non-confidential records available for inspection during the agency's business hours, but the trio was denied access to the documents they were asking to inspect.

"This whole thing has been a farce," Buckheit told The Almanac Wednesday. "The town of Atherton has had this strategy of putting their heads in the sand and hoping (problems) go away."

But, he added, avoiding problems has resulted in even more of them, including litigation against the town. "They've got to change -- they've got to respond to people."

The video is at Atherton meeting

Comments

Like this comment
Posted by the_punnisher
a resident of Mountain View
on Aug 26, 2010 at 6:28 pm

That town is a boil that needs to be lanced by PUBLIC OPEN DISCUSSION.

This is a typical response when a town's rulers are doing something they shouldn't....

That is why there are SUNSHINE LAWS....a dose of RADIATION does a good job of clearing CANCER of all types...


Like this comment
Posted by qq
a resident of Barron Park
on Aug 26, 2010 at 6:44 pm

Wow, that town manager must be a fully paid up card carrying member of the Good Old Boys Club.

Sheesh.

qq


Like this comment
Posted by yuck
a resident of Meadow Park
on Aug 26, 2010 at 8:39 pm

Those residents are annoying and obviously have some vendetta against this public official. I am siding with the public official on this one.


Like this comment
Posted by Mike
a resident of Old Palo Alto
on Aug 27, 2010 at 12:04 am

Absurd.


Like this comment
Posted by Sally
a resident of Fairmeadow
on Aug 27, 2010 at 8:26 am

The beauty of the American legal system is that even annoying citizens have full rights and protections under the law.


Like this comment
Posted by Silly Sally
a resident of Crescent Park
on Aug 27, 2010 at 10:48 am

I want more videos! The cast here is riot, next time folks, do what all good production companies do - rehearse and for pete sakes get a wardrobe and hair consultant.

If that chunky woman in white pays $70,000.00 a year in taxes at least get a better hair do.


Like this comment
Posted by lawman
a resident of Menlo Park
on Aug 27, 2010 at 8:31 pm

What a bunch of pot-stirring (but unable to cook and unwilling to learn how to do so and wanting someone else to give them, give them et al ad nauseum) egotistical douche-bags. (Oops, I dated myself, adding fodder to those who think intellectual honesty is an inflatable toy.)
*sigh* or should that be *yawn* ? Help me out here, citizens.


Like this comment
Posted by Michael Stogner
a resident of another community
on Aug 28, 2010 at 7:55 am

Dear Lawman,

The woman is a resident/property owner in the Town of Atherton. She pays approx. $70,000 per year in property taxes. She went to the building department during business hours to get information on her own property.

City Manager Jerry Gruber and others had already discussed and prepared a script which did not address her question and only temporarily denied her access to the public information.

Stay focussed Jerry Gruber and others.


Like this comment
Posted by PAPD-Critic
a resident of Barron Park
on Aug 28, 2010 at 4:18 pm



Jay T - Censor this!!!

California

It is a crime in California to intercept or eavesdrop upon any confidential communication, including a telephone call or wire communication, without the consent of all parties. Cal. Penal Code §§ 631, 632. It is also a crime to disclose information obtained from eavesdropping. However, an individual can still be convicted without disclosing information. Two appellate courts have held that there is no disclosure or publication requirement for violation of the Privacy Act by recording confidential communications without consent. Coulter v. Bank of America, 28 Cal. App. 4th 923 (Cal. Ct. App. 1994). Marich v. MGM/UA Telecommunications, Inc., 113 Cal. App. 4th 415 (Cal. Ct. App. 2003).

Eavesdropping upon or recording a conversation, whether by telephone or face-to-face, when a person would reasonably expect their conversation to be confined to the parties present, carries the same penalty as intercepting telephone or wire communications. A California appellate court ruled that a network’s broadcast of a news report that used excerpts from secret recordings during two patient examinations violated the privacy rights of the physician, who had a reasonable expectation that his communications with his patients would be private and not recorded. Lieberman v. KCOP Television, Inc. 110 Cal. App. 4th 156 (Cal. Ct. App. 2003).

But, conversations that occur at any public gathering where one could expect to be overheard, including any legislative, judicial or executive proceeding open to the public, are not covered by the statute. For example, when a television network used a hidden camera to videotape a conversation that took place at a business lunch meeting on a crowded outdoor patio of a public restaurant, the conduct did not violate the Penal Code’s prohibition against eavesdropping because it was not a “confidential communication.” Wilkins v. NBC, Inc., 71 Cal. App. 4th 1066 (Cal. Ct. App. 1999).

However, an appellate court has ruled that using a hidden video camera in a private place does violate the statute. California v. Gibbons, 215 Cal. App. 3d 1204 (Cal. Ct. App. 1989). It is not a crime to take notes during a conversation or later summarize or disclose one’s recollection of a communication. People v. Wyrick, 77 Cal. App. 3d 903 (Cal. Ct. App. 1978).

A first offense of eavesdropping is punishable by a fine of up to $2,500 and imprisonment for no more than one year. Subsequent offenses carry a maximum fine of $10,000 and jail sentence of up to one year. Intercepting, recording, and disclosing information each carries a separate penalty.

Anyone injured by a violation of the laws against disclosure of telegraphic or telephonic messages can recover civil damages of $5,000 or three times actual damages, whichever is greater. Cal. Penal Code § 637.2(a). A civil action for invasion of privacy also may be brought against the person who committed the violation. Cal. Penal Code § 637.2.


Like this comment
Posted by So Funny
a resident of Barron Park
on Aug 28, 2010 at 5:23 pm

This is SO funny. That's the town manager?? Wow, what a tool. His town attorney told him just to read what was on the script and man, he was not going to deviate. That's pretty embarrassing for him and the town. I have no idea was the fuss is about, but the way they handled it was ridiculous.


Like this comment
Posted by Yawn
a resident of another community
on Aug 29, 2010 at 5:57 pm

Maybe it is time for some to learn that what they say and do in a public place could be put up on youtube and tone down their ranting.


Like this comment
Posted by PAPD-Critic
a resident of Barron Park
on Aug 29, 2010 at 6:33 pm


To Posted by Yawn.

Just what your doing, ranting....all protected First Amendment Speech. People have be ranting and raving since the beginning of time. This was government sanctioned meeting in public and therefore subject to full disclosure and transparency.

Why don't you read what's been blogged thus far....and stop your ranting and raving!!! :-)

"But, conversations that occur at any public gathering where one could expect to be overheard, including any legislative, judicial or executive proceeding open to the public, are not covered by the statute.

For example, when a television network used a hidden camera to videotape a conversation that took place at a business lunch meeting on a crowded outdoor patio of a public restaurant, the conduct did not violate the Penal Code’s prohibition against eavesdropping because it was not a “confidential communication.” Wilkins v. NBC, Inc., 71 Cal. App. 4th 1066 (Cal. Ct. App. 1999).


Sorry, but further commenting on this topic has been closed.

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