Google in San Jose: Who signed non-disclosure agreements?

Nearly 20 San Jose officials signed non-disclosure agreements in 2017 at the behest of Google as the tech giant explored building a massive campus in downtown San Jose.

The agreements became a major sticking point for advocates who claimed the massive land deal was cloaked in secrecy and that the public deserved to know the terms of selling up to 20 acres of public land to Google. Business leaders argued that NDAs are a standard tool in major development negotiations, a common practice to protect the city and the private company.

“The NDA was requested by Google when they were exploring the possibility purchasing City and (former redevelopment agency) owned properties,” said city attorney Rick Doyle. “The agreements were signed by individuals in their respective capacity as city employees.”

A public records request by San José Spotlight revealed who at San Jose City Hall signed the agreements — and who didn’t. Here’s the full list of officials along with the date the agreements became effective.

• Ru Weerakoon, former senior policy advisor to Mayor Sam Liccardo (2/8/17)
• Bill Ekern, Diridon project manager (2/8/17)
• Nanci Klein, assistant economic development director (2/9/17)
• Harry Freitas, former San Jose planning director (2/9/17)
• Mayor Sam Liccardo (2/26/17)
• Arian Collen, parking manager (5/9/17)
• John Ristow, acting department of transportation director (5/9/17)
• Dave Sykes, San Jose city manager (5/22/17)
• Kim Walesh, economic development director (5/22/17)
• Norberto Dueñas, former city manager (5/22/17)
• Councilmember Dev Davis (5/27/17)
• Councilmember Raul Peralez (5/27/17)
• Councilmember Magdalena Carrasco (5/30/17)
• Mary Anne Groen, Davis’ chief of staff (5/27/17)
• Christina Ramos, Peralez’s chief of staff (5/27/17)
• Frances Herbert, Carrasco’s chief of staff (5/27/17)
• David Low, Liccardo’s former communications director (5/31/17)
• Eric Eidlin, station and access planning manager (8/17/17)

The language in the 18 NDAs says the recipient’s duty to “protect confidential information” expires five years from disclosure — unless the parties agree otherwise in writing.

And even after the NDA’s termination, the confidential information remains private.

“Either party may terminate this agreement with thirty days prior written notice,” the agreement said, “but this agreement’s provisions will survive as to Confidential Information that is disclosed before termination.”

A Washington Post investigation on Friday found that Google required officials in Texas to sign NDAs as it negotiated $10 million in tax breaks under a shell company name, Sharka LLC. The public learned Google was behind the deal only after it was approved.

In November, San Jose was sued by Working Partnerships USA and the First Amendment Coalition, in part because of the NDAs and the perceived “secrecy” around the deal. Housing activists worried that the tech giant’s expansion into San Jose, along with 20,000 new jobs, would exacerbate the housing crisis, poverty and homelessness.

“We wanted to make sure that the City of San Jose was looking out for its residents in its negotiations with Google,” a post from Working Partnerships USA said. “Our mayor and other city staff have signed secretive non-disclosure agreements at Google’s request. They have refused a number of public records requests to release details that should be made public.”

David Snyder, executive director of the First Amendment Coalition, said NDAs are common between private parties, but public agencies like the city of San Jose have independent obligations to produce records.

“The NDAs are substantially overbroad,” Snyder said. “They give Google a really wide latitude in determining what’s a public document and what is not. We’re pretty confident those NDAs are the reason the city has failed to give us a lot of the records they’re required to give us.”

“The city can’t override or allow Google to override the right of the public, under California law, to see certain records,” he added.

Doyle disputed the accusation that San Jose hasn’t turned over documents, especially after the city in June went public about its plans to sell land to Google.

“We were slow in compiling the documents but we’ve complied with the Public Records Act,” he said.

Not all members of the San Jose City Council signed the NDA, though the land sale for Google’s proposed megacampus was discussed in closed-session. Doyle said the lawmakers whose districts are most impacted by the development were required to sign the agreements.

Doyle conceded that 18 San Jose officials signing NDAs is “a large number” — it’s usually five or six. But, Doyle added, Google’s proposed campus is “not the average project.”

What happens if the agreement is violated, between now and five years? The city of San Jose would be on the hook.

“Since the agreements were signed by employees in the course and scope of their employment with the City we would represent them if necessary,” Doyle said.

Click here for a copy of the NDA.

Contact Ramona Giwargis at [email protected] or follow @RamonaGiwargis on Twitter.