Judge sides with San Jose on transparency lawsuit over Google negotiations

A judge has dismissed a lawsuit filed against San Jose over an alleged lack of transparency in the city’s dealings with Google, which is working on plans for a massive campus in the city.

Local nonprofit thinktank Working Partnerships USA and the First Amendment Coalition, a Bay Area nonprofit public interest organization, sued San Jose last year because the pair allege the city hasn’t done a thorough search for records and emails by San Jose officials and hasn’t turned over all of the public documents required, per a state open records law, known as the California Public Records Act.

They wanted Santa Clara Superior Court Judge Patricia Lucas to order San Jose to do a more thorough search for documents and turn over more records related to the city’s negotiations with Google to sell publicly-owned land to the tech titan.

San Jose attorneys, however, said they’d turned over everything considered public record.

Judge Lucas has made her decision, dismissing the claims by Working Partnership and First Amendment Coalition and not ordering the city to turn over more documents.

“The city of San Jose is committed to transparency and following the rules in all of our processes, including our efforts to attract and retain businesses that invest in San Jose,” Dave Sykes, San Jose city manager, said in a statement Tuesday. “We hope the outcome of this lawsuit strengthens trust in the public process.”

Despite the ruling, received this morning by Working Partnerships, officials at the nonprofit say the lawsuit was necessary because the suit shook free more public documents from the city from when the lawsuit was filed to when the merits of the case were heard by the judge.

“Our lawsuit successfully forced the city and the mayor to release thousands of pages of documents they tried to hide from the public,” Derecka Mehrens, executive director for Working Partnerships USA, said in a statement to this news organization. “Those documents should have been made public months before we ever had to sue.”

Though the city isn’t required to provide additional documents based on the lawsuit, Working Partnerships and First Amendment Coalition is still asking officials to review and release documents they believe should be public. Among those documents, they want an affidavit from Mayor Sam Liccardo certifying he’s turned over all documents related to his communications with Google representatives.

“I think it would be great if the city affirmed that Sam Liccardo ever looked through his emails,” David Snyder, executive director at First Amendment Coalition said. “In the evidence we saw it doesn’t appear he did.”

The city, however, has said that Liccardo was responsive to the records requests by the two nonprofits and Judge Lucas rejected that such an affidavit should be required by San Jose in her ruling.

Working Partnerships and First Amendment Coalition say they received only two documents that appear to be communications between Liccardo and Google representatives and the pair remain skeptical that there aren’t more that should be released.

Snyder said the city has not turned over 94 documents the two nonprofits have requested. The city has cited reasons for not releasing those documents, asserting they are not public records or that releasing some of the documents could jeopardize future negotiations with Google over the 6 million- to 8 million-square-foot mixed-use campus the tech titan is planning for downtown San Jose.

The judge appears to have agreed with San Jose’s rationale for not releasing those documents, stating: “As a matter of common experience and common sense, a party is advantaged in negotiations when certain information is not known to the other negotiating party.”

It’s too soon to say whether the two nonprofits will appeal the decision, Snyder said.

The case was heard Aug. 1, shortly after Working Partnerships and First Amendment Coalition announced they’d discovered San Jose officials had lost many recordings of closed-session meetings between public officials that were supposed to be kept, per the city’s own laws — a detail reported by San José Spotlight ahead of the hearing.

San Jose City Attorney Rick Doyle told this news organization that the missing recordings were due to “human error,” and that the city has since fixed its process for storing the recordings.

But the lawsuit filed by Working Partnership and First American Coalition, in which the pair accuse the city of violating the state’s open meeting law known as the Brown Act, made the transcripts of the previously private recordings that were saved by the city available to read.

San José Spotlight reviewed available transcripts of the recordings and reported on some of the content of those meetings earlier this month.

“The policy of the city of San Jose should be to release all documents the public requires before they are under the pressure of litigation,” Mehrens said. “We are proud of our work in support of transparency and open government.”

Contact Janice Bitters at [email protected] or follow @JaniceBitters on Twitter.

Editor’s Note: The executive director of Working Partnerships USA, Derecka Mehrens, serves on San Jose Spotlight’s Board of Directors.