Judge rejects San Jose’s push to overturn court ruling

After losing a public records lawsuit filed by this news organization, San Jose attempted to shift the outcome—and lost again.

Santa Clara County Superior Court Judge Thomas Kuhnle denied a request from San Jose and former Mayor Sam Liccardo to further explain how Liccardo searched his personal email and text accounts for public records, a key issue in the lawsuit.

The denial came shortly after Kuhnle ruled on Aug. 29 the city and Liccardo violated the state’s public records laws by not adequately proving how Liccardo searched his private accounts for records requested by San José Spotlight, and by being too vague in declarations already submitted.

Attorneys for San José Spotlight and the First Amendment Coalition, also part of the lawsuit against the city and Liccardo, said the judge made the right call.

“I felt like when the city filed the motion (to file additional declarations), it was like asking for a fourth bite at the apple,” said Karl Olson, an attorney representing San José Spotlight.

First Amendment Coalition Legal Director David Loy said San Jose had multiple opportunities to show it conducted an adequate search for records—a foundational issue in every public records case.

“I think it was a day late and a dollar short,” Loy told San José Spotlight. “They had their chance, they had two chances, and I think the judge is correct, they don’t get a third.”

After Kuhnle ruled against the city due to a lack of detail in the initial declarations submitted, Liccardo said he wrote a 14-page supplemental declaration about how he searched for records, asking city attorneys to try to file it with the court.

“The court refused, so an appeals court may have the opportunity to decide whether the trial court should have considered my supplemental declaration,” Liccardo told San José Spotlight.

Earlier this year, Kuhnle ordered Liccardo and Rhonda Hadnot, Liccardo’s chief of operations while in office, to detail their public records search procedure and training in detailed declarations to the court. But Kuhnle said they fell short in numerous ways, including failing to provide key search words used, date ranges of searches or how many records were withheld.

“They say nothing about what they did to search Liccardo’s private email and text message accounts for records responsive to the particular requests at issue here. There are no details,” Kuhnle wrote.

Elisa Tolentino, San Jose’s senior deputy city attorney, said in a filing with the court, “to the extent I misread the order or read it too narrowly, (the city) would appreciate an opportunity to provide further information about Mr. Liccardo’s and Ms. Hadnot’s efforts to search for public records.”

Tolentino also said San Jose, Liccardo and Hadnot would provide the missing information, such as keywords and date ranges, and would “also provide information regarding communications withheld from production” in the case.

Despite the judge’s ruling the city violated the California Public Records Act, Nora Frimann, San Jose’s city attorney, said the city produced “thousands of pages” of emails in response to the records requests from San José Spotlight.

“The evidence submitted to the court established that every email in the account was collected and reviewed with respect to possible privileges or exemptions under the Public Records Act,” Frimann told San José Spotlight. “The city does provide training on how to undertake searches and collect responsive documents, including for the mayor and council and their staff.”

Frimann said it has not been decided whether the city will appeal any outcomes of the case.

Loy noted there are still open questions about whether Liccardo deleted some text messages that were never ultimately produced in response to the public records requests.

“The city has never fully explained where they went. Did Liccardo delete them as soon as he sent them, did he delete them after we sent the request, before we sent the request? Did he just never find them, did they get lost in the ozone, are they buried in his phone somewhere?” Loy said. “We just don’t know and that’s the problem.”

Loy said he and Olson are beginning confidential settlement discussions with the city about covering their attorneys fees in the case, and declined to specify the estimated cost of the litigation.

“It’s a substantial number given the amount of time this case has taken, and I think we are clearly entitled to substantial fees because we are the prevailing parties,” Loy said. “Not just because the judge ruled substantially in our favor, but before that ruling, our litigation resulted in the city disclosing two different tranches of records that the city had previously withheld.”

The city could have avoided paying fees altogether, “if they had just disclosed the records that we requested, and if they had complied with the public records act,” Olson said. “But they did not, as the judge has ruled.”

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