‘Disgraceful’: San Jose struggles with records law years after landmark case

In the six years since San Jose made national headlines for losing a pivotal lawsuit that changed state transparency laws, the city’s been sued over public records numerous times and paid hundreds of thousands of dollars to settle.

An analysis by San José Spotlight found the city faced at least six lawsuits—half from news organizations—accusing city leaders of violating transparency laws by withholding or hiding public records. The city collectively paid $643,225 after losing several cases, and is still embroiled in ongoing litigation.

The six-figure payout doesn’t account for the hours city hall’s taxpayer-funded lawyers spent fighting cases to avoid disclosure. The public records shielded by the city were unsealed by a judge in many of the cases.

It’s a difficult position for a city that once prided itself on sunshine and transparency laws.

“The public shouldn’t have to litigate access to records that should be disclosed,” David Loy, legal director of theFirst Amendment Coalition, told San José Spotlight. “The point of freedom of information laws is to be transparent to the people. They should not turn on the gamesmanship of who wins a particular lawsuit or who has the resources to litigate that lawsuit.”

San Jose has become ground zero in the public’s fight against government secrecy. The city was sued in 2009 for withholding emails and texts about a development proposal from former Mayor Tom McEnery, who received millions from the city’s redevelopment agency for the project. The eight-year legal battle ended in 2017 when the California Supreme Court made a landmark ruling: communications on personal accounts or devices are considered public records if they deal with the public’s business. The high court effectively rejected a practice by government officials of using personal accounts to hide emails and texts from the public.

The city paid more than $1 million in attorney’s fees, according to plaintiff Ted Smith. He said in an op-ed last year that things haven’t improved since then.

“San Jose prides itself on its so-called ‘sunshine’ policies and transparency measures,” Smith wrote. “But the truth is, the Bay Area’s largest city and its government are shrouded in secrecy and darkness.”

San Jose City Attorney Nora Frimann said city hall spends significant resources on public records requests and fielded some 4,000 requests in the past year.

“(Public Records Act) litigation is very rare for us,” Frimann told San José Spotlight. “The city does its best to be responsive and comply with the Public Records Act, but there are occasions when there may be a dispute, for example, as to what is required under the act or staff are not able to readily produce documents.”

Ongoing legal troubles

Government officials across California—especially in San Jose—continue using private accounts to circumvent disclosure laws, despite the California Supreme Court’s 2017 finding that those communications are public. Former Mayor Sam Liccardo, who used his personal Gmail for most of his government work, coaxed a resident in 2021 to use his personal email to avoid disclosure and vowed to delete the public thread. San José Spotlight and the First Amendment Coalition sued the ex-mayor and city for improperly withholding records and won decisively in August when a judge ruled the city and Liccardo violated the law. The city paid $500,000 in attorney’s fees.

San Francisco media attorney Karl Olson, who co-litigated the 2017 case and called Liccardo a “repeat offender,” represented San José Spotlight in the case.

The Mercury News has sued San Jose twice since 2017. It won $65,000 in 2020 when a judge ruled that the city must release police records related to use of force. Last year, the city forked over nearly $80,000 after a judge ordered it to release emails to the newspaper about a stripper scandal at the Pink Poodle involving the city’s fire department.

The South Bay Piping Labor Management Trust sued San Jose in 2021 after the city refused to disclose records about questionable labor practices involving a wastewater treatment plant upgrade. A judge ordered the city to release some of those documents.

“San Jose is just blatantly hiding stuff, but some of the denied documents are ones that I have,” Mauricio Velarde, the group’s director of compliance, told San José Spotlight. “And I’ll say, ‘Hey, where are these documents?’ And (the city will) respond like, ‘oh, we inadvertently withheld those.’ I’m not making that up. That’s an actual quote.”

The city was sued in late 2018 amid a historic decision to sell publicly-owned land to Google for a sprawling new campus. Working Partnerships USA and the First Amendment Coalition accused city leaders of backroom negotiations with the tech giant and “losing” critical public records about the massive development. A judge ruled the city did not have to release additional records.

And today, San Jose is fending off a transparency lawsuit from Stacey Brown, a former staffer of Mayor Matt Mahan. The suit, filed in July by attorney Jim McManis, accuses the city of excessively delaying the release of records. McManis co-litigated the landmark 2017 case with Olson.

A ‘disgraceful’ practice

Despite the city’s troubling history with transparency, Liccardo—who is now running for Congress—wanted to further weaken the city’s response to public records requests. Three weeks before leaving office, Liccardo suggested the city instruct journalists and the public on how to narrow or limit their requests to reduce the city’s “fiscal burden” of compliance. The idea sparked alarm from journalism and First Amendment groups. The city council unanimously approved the changes last year.

The city attempted to improve its records request process by launching a portal to file and view public records requests. But McManis said it isn’t enough.

“The way the city of San Jose handles these public records requests is disgusting, disgraceful. It’s an outrage,” McManis told San José Spotlight. “It’s become this custom policy and practice to just basically shine people on for month after month after month. That’s wrong and I think the court has a duty to put a stop to it.”

Contact Jana at [email protected] or follow @Jana_Kadah on X, formerly known as Twitter.