In response to an appeal from San José Spotlight over a denial of public records, San Jose will conduct a more thorough search for Mayor Sam Liccardo’s emails related to an advocacy group and produce a log explaining why certain communications are being withheld.
The decision came Wednesday after the Rules and Open Government Committee considered this news organization’s appeal. While the committee did not vote to release the communications in question, it voted unanimously to do another search for emails and to provide more details about the withheld records. It was also revealed that the city is withholding three emails.
In early May, San José Spotlight filed a public records request for emails and texts related to the mayor’s advocacy organization, Solutions San Jose, from his office over the past six months. The city declined to release the emails, despite the fact that the group is lobbying and attempting to shape and influence public policies. The city cited attorney-client privilege—a decision that raised eyebrows among attorneys and open government advocates.
San José Spotlight co-founders Ramona Giwargis and Josh Barousse argued Wednesday the emails deal with the public’s business and should be disclosed under the state’s public records law. To qualify under the attorney-client privilege, a communication must involve giving legal advice.
But City Attorney Nora Frimann told this news organization in a June 17 email that her office has “not provided legal advice about Solutions San Jose to the Mayor or members of his office.”
The city will conduct a second search of records to ensure it did not miss any communications related to Solutions San Jose. It will include a review of public and private email accounts belonging to the mayor and his staff.
“This is a step in the right direction because it gives us a better idea of why City Hall won’t turn over these emails,” Giwargis said. “We believe there are more communications about Solutions San Jose that should be released under the law.”
Frimann on Wednesday insisted that the records are privileged and could only be released with the City Council’s approval. According to her, the responsive records include emails between her office and a staff member of the mayor’s office. The documents were not shared with the committee members.
“They were seeking legal advice,” Frimann said at the meeting without sharing any further details, a contrast to her statements in the June 17 email. “Typically those are identified as being privileged.”
Councilmember Raul Peralez said he’s wary about the fact that councilmembers haven’t even seen the documents.
“This is a gray area,” Peralez said, “It’s almost as if we have no other option besides trusting our city attorney and staff on what should be released or not.”
The committee also pondered briefly what Solutions San Jose is and how it related to Liccardo’s role as mayor. Peralez said he was surprised to learn Housing Director Jacky Morales-Ferrand was a panelist on a Solutions San Jose event last week.
The 501c(4) advocacy organization has been lobbying on public policy issues such as reopening public schools, opposing water rate hikes and housing policy. It’s hosted at least two forums on homelessness with panelists that include Licardo himself, the city’s housing director and other community leaders.
Some likened Solutions San Jose to a campaign committee.
Councilmember Sylvia Arenas also brought up a potential conflict with Liccardo using his name and title in emails promoting Solutions San Jose.
“That would be an area of concern as it would maybe mislead some folks (in) thinking that it’s coming from the city of San Jose,” Arenas said, urging the city attorney’s office to advise the mayor that his title should be for identification purposes only. “I’m sure that the mayor knows some of these rules. He’s been in this field a lot longer than I have.”
Instead of having the council meet in a closed session to review the records, the committee opted to fulfill San José Spotlight’s requests for a second search of records and the release of an email log.
Liccardo launched the 501(c)(4) nonprofit in February.
San José Spotlight requested the records under the California Public Records Act, a law that gives the public the right to inspect and access “information concerning the conduct of the people’s business”—unless the records fall under an exemption. Exemptions include personnel records, pending litigation, police investigations and attorney-client privileged communications, among others.
The state’s public record law also allows agencies to release records even if they fall under exempt documents.
Frimann said there’s a distinction between the city’s business and “issues of interest of the city,” referring to Solutions San Jose’s advocacy work. All communications related to the city’s business, even if they’re on private accounts, are public records. The same rule can’t apply to “issues of interest of the city,” she said.
“The question and the issue with this request is whether or not there were emails on city accounts or personal accounts that related to the business of the city,” Frimann said.
At least nine residents sent letters to City Hall supporting San José Spotlight’s push for transparency and demanding the city release the records. Several others also spoke in support of the records’ release at the meeting.
“I want to voice my strong support for San Jose Spotlight’s request for emails and other electronic communications between Mayor Sam Liccardo and Solutions San Jose,” resident Bob Durham wrote to the committee. “The claim that all such communications are subject to attorney/client privilege stretches credulity to the breaking point; it’s simply not believable.”
A District 9 resident echoed the sentiment, adding that the stonewalling of records stands stark against the city’s mission to be transparent.
“(Solutions San Jose) is not a city entity yet Liccardo sends emails on behalf of the group using his title as mayor,” wrote Cass Kohler. “The City’s claim that every email he sends to this third party is attorney client privileged is an over reach and runs counter to San Jose’s and Liccardo’s commitment to open and transparent government.”