Former San Jose mayor must explain how he complied with records law

A superior court judge is ordering former San Jose Mayor Sam Liccardo to explain under penalty of perjury how he searched his private emails and texts for messages related to city business in response to a lawsuit from this news organization.

In a ruling issued last week, Santa Clara County Superior Court Judge Thomas Kuhnle said Liccardo must submit a declaration to the court within a month. The order came after San José Spotlight and the First Amendment Coalition sued the city and former mayor in February 2022 for violating the state’s public records laws.

Kuhnle said he needs to know more about how Liccardo did his searches—and what kind of training he had to distinguish personal business from public—in order to make a final ruling on whether the city violated the California Public Records Act.

“This was the heart of the case,” First Amendment Coalition Legal Director David Loy told San José Spotlight. “The whole issue is exposing the extent to which Liccardo was doing public business on private accounts.”

The ruling came after this news organization revealed how the city improperly withheld public records, 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 all claims in the lawsuit.

The city in October released more than 100 pages of documents after it was sued, but Loy said there are “significant text messages that we know exist that were never disclosed.”

“We had clear evidence in other documents specifically referring to text messages that Liccardo sent, but that were never produced,” Loy said, raising questions about how thoroughly Liccardo searched his own devices and accounts in response to records requests. “Where are these missing text messages?”

Karl Olson, a First Amendment lawyer representing San José Spotlight in the case, said it seems clear Liccardo either didn’t properly search for the records or had already deleted them from his phone and email accounts, indicating he violated the law.

A landmark California Supreme Court ruling in 2017 based on San Jose’s refusal to turn over personal emails of city leaders, including then-Councilmember Liccardo, established that even when officials do the public’s business on personal devices or accounts, the records can’t be hidden.

“We felt that (Liccardo) was basically thumbing his nose at the Supereme Court decision,” Olson said. “We’ve got a lot of evidence that texting is how he does business, and he doesn’t want people to find out about his backroom dealings.”

Liccardo told San José Spotlight he is “happy to provide the court with more information.”

In the order, Kuhnle denied San José Spotlight’s request to require city officials to use their city accounts or copy them when conducting public business, and not delete the records for at least two years, as outlined in state law for department heads of cities.

Kuhnle wrote that Liccardo is not a department head, and noted San José Spotlight didn’t raise any concern about department heads’ handling of public records in the city.

San José Spotlight is also asking the court to declare that San Jose violated the public records act, and Kuhnle noted he would defer his judgment on that until he reviews declarations from Liccardo and another city staffer.

Kuhnle also ordered the city to turn over at least 200 pages of records from a list of 327 the city continued to withhold after more than a year of litigation. Some of the records San Jose must now release deal with development deals, energy issues and the city’s budget and personnel issues. Kuhnle allowed the city to continue shielding dozens more records that deal with pending litigation and issues covered by attorney-client privilege.

Another judge ordered San Jose in November to produce a log disclosing information about the withheld records, including senders, receivers and topics—something the city initially refused to do.

Loy said Kuhnle was “meticulous” in deciphering which records should be released, but is concerned about some of the documents Kuhnle said the city can keep private. One record includes a draft of Liccardo’s apology statement in 2020 for violating state health orders by gathering with his extended family for Thanksgiving dinner.

“It was clearly a public matter because his final statement was posted on the city website,” Loy said.

Kuhnle said some records between Liccardo and his friend and lobbyist Carl Guardino, working at the time on behalf of Bloom Energy, would need to be released. City officials claim the records should be kept private because they contain “Liccardo’s deliberative process related to the microgrid policy” and “a microgrid provider’s proprietary information.”

San José Spotlight’s reporting revealed how Guardino lobbied at the last minute to exempt his company from the city’s landmark natural gas ban. Previously withheld emails show Guardino’s team helped write the policy language that benefitted the company—which city leaders adopted. A series of emails Guardino sent the day of the vote were never disclosed by the city.

Kuhnle left the door open, however, for those records to be kept secret if the city can show there was a confidentiality agreement before the emails were sent. Loy disagrees with the judge’s decision, saying there are narrow exceptions for withholding a record because of proprietary information.

“A confidentiality agreement can’t supersede the (records act),” Loy said.

Liccardo said he thought the judge’s order was balanced.

“The court struck the right balance between affirming the city team’s diligent production of more than 8,900 documents in compliance with spirit and letter of the law, and recognizing that a couple hundred more pages should be produced given the passage of time because any ‘deliberative process privilege’ that justified their withholding months or years ago has long since expired,” he said.

Olson and Loy said they are weighing whether or not they will appeal portions of the order from Kuhnle.

Contact Joseph Geha at [email protected] or @josephgeha16 on Twitter.