Ex-San Jose mayor’s public records reforms spark alarm
San Jose Mayor Sam Liccardo speaks during an interview with San José Spotlight on Dec. 14, 2022. Photo by Joseph Geha.

In one of his last actions in office, former San Jose Mayor Sam Liccardo wants to reform how the city complies with transparency laws—a move experts say could limit the public’s access to the inner workings of City Hall.

Liccardo, who termed out in December after 16 years in office, is calling for revising the city’s process for responding to public records requests, citing the need to cut down costs, reduce delays and avoid errors. He also wants to explore changes to the city’s document retention policies.

“With the most thinly-staffed City Hall of any major U.S. city, every individual consumed with this work is not providing other valued services to our community,” Liccardo said in a memo authored three weeks before he left office. “We must fulfill our obligations to transparency and public accountability without undermining response to the many urgent issues needing our attention.”

He claims the city’s costs to provide public records have doubled to $2 million annually in the last three years. Liccardo is suggesting “voluntary protocols” for journalists to limit their records requests to avoid “fishing expeditions.”

Liccardo, whose legacy as a councilmember and mayor is plagued by transparency-related lawsuits and violations, lambasted the media and a new state law for driving up costs and staff time to respond to public records requests. He told San José Spotlight the police department assigned 36 workers to fulfill a single records request related to police misconduct. The growing costs came after a landmark California police transparency law, SB 1421, went into effect in 2019. San Jose recently launched a public portal to make those records more accessible.

Liccardo also singled out several media requests—one of which appears to reference San José Spotlight’s request for communications on his private email account.

The former mayor’s proposal passed unanimously in the Rules and Open Government Committee meeting last week. The city attorney’s office will review local rules and report back to the San Jose City Council on potential changes in the next few months. The city will also explore technology to help expedite the public records request process.

But Liccardo’s idea is alarming journalists and free speech experts.

“Maybe Liccardo wants to be a strong man, like (Donald) Trump did. Or maybe he’d be more comfortable with being the leader of Vladimir Putin’s Russia than he is as a leader of a democratic society,” said Karl Olson, a First Amendment expert and lawyer who represents San José Spotlight. “In America, we take our freedoms very seriously. And we take access to public records very seriously.”

Olson is representing this news organization in an ongoing lawsuit filed against San Jose and Liccardo over the city’s failure to comply with public records laws. The lawsuit, filed in February, is in partnership with the First Amendment Coalition.

David Loy, legal director of the First Amendment Coalition, said Liccardo’s push for legislative advocacy to stop “abuse” of the state’s transparency laws could deter journalists and the public from using transparency laws.

“I’m all for anything that increases transparency and reduces delays and expenses in complying with public records requests, but the memo seems to treat transparency as a chore and a burden,” Loy told San José Spotlight. “The mayor of a major metropolitan city, or mayor of any city, should set the bar higher than merely not illegal.”

Liccardo said his proposal aims to reduce the financial burden of responding to records requests.

“Some political groups have learned how to weaponize a very well-intentioned law, the (Pubic Records Act), to accomplish political goals wholly unrelated to the public’s right to transparency, spawning a cottage industry of attorneys that generates fees at the expense of understaffed cities struggling to comply,” Liccardo told San José Spotlight.

Another goal, the ex-mayor added, is to address a rapidly growing volume of requests.

“(Olson’s) response resembles what the gun rights groups’ attorneys said to the media when they filed their unsuccessful lawsuits against the city last year,” he added.

But Brittney Barsotti, general counsel of the California News Publishers Association, called Liccardo’s proposal troubling. 

“When the city says it’s too much work for the city to respond to all of these requests, that becomes concerning,” Barsotti told San José Spotlight. “The reality is it’s not for the city to decide what is and what is not a ‘fishing expedition.’ It’s not for the city to decide what information is or is not valuable to the public.”

Liccardo also asked the city attorney to clarify how long councilmembers are stuck in a “Brown Act group”—a group of five or fewer members who discuss an item or decision—and the scope of the issues they discuss. If a majority of members—six or more councilmembers—discuss an item privately, it’s considered a violation of the state’s public meetings law, the Brown Act.

Ongoing legal challenge

The proposed changes to the city’s process come as San Jose and Liccardo fight a lawsuit from this news organization and the First Amendment Coalition over improperly withholding emails. In 2021, San José Spotlight revealed how the city repeatedly disregarded the law, redacted information without adequate reasoning and failed to conduct thorough searches for records. The lawsuit also alleges the city routinely skirts public records law—preventing the public from being able to scrutinize city officials’ interactions with lobbyists and special interests.

The city has denied the claims.

City Attorney Nora Frimann said Liccardo’s ideas could help the city respond to records requests more efficiently.

“I don’t think the city sees transparency as a burden,” Frimann told San José Spotlight. “Quite the contrary—the concern is making sure that city departments and offices have the resources to respond in the manner expected by the city’s public records policy and state law.”

Olson countered that Liccardo is a repeat offender and the city is under fire because of his misconduct. He referred to a 2017 California Supreme Court case where San Jose activist Ted Smith sued the city and its elected officials, including then-Councilmember Liccardo, for withholding records on private devices related to a redevelopment plan in downtown.

In a landmark decision, the city ruled in Smith’s favor and ordered the city to pay more than $1 million in attorney’s fees. It also ruled that emails or text messages from private devices or accounts are public records if they pertain to city business. Liccardo almost exclusively uses his private Gmail for public business.

“It was Liccardo’s pigheadedness in trying to communicate on private devices and denying that they were public records that cost the city $1 million,” Olson said. “If you don’t have access to public records, you have no way of knowing how somebody like Sam Liccardo is using taxpayer dollars.”

Contact Tran Nguyen at [email protected] or follow @nguyenntrann on Twitter. 

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