Lawmakers pass the buck on San Jose transparency bill

A state bill to increase public access to the communication of government officials died on the desks of lawmakers without consideration — a sign of the uphill battle transparency measures face in Sacramento.

Senate Bill 908 — introduced in January by State Sen. Dave Cortese — would have required public officials to forward messages about government business from their personal accounts to government servers where public access is available. The bill was inspired by San José Spotlight’s successful public records lawsuit in 2022 against San Jose and former Mayor Sam Liccardo. A judge ruled in August the city and ex-mayor violated the California Public Records Act by failing to adequately search for and release public records. The legislation followed guidance from the California Supreme Court — stemming from a landmark San Jose case — to use or copy government accounts to ensure transparency and access, and mirrored federal regulations for public employees and agencies. But without any explanation, state lawmakers this month gutted and rewrote SB 908 to instead address child fentanyl deaths.

The illegal practice of public officials using personal email accounts or phones to circumvent state law and hide communications about public business is a widespread problem documented by journalists across the state.

Advocates for the bill’s original form call it a setback for transparency.

“It would have totally moved the needle,” First Amendment lawyer Karl Olson, who represented San José Spotlight and co-litigated the landmark 2017 case. “There are a lot of public officials that I think now prefer to use private channels to communicate, like the former San Jose mayor and would-be congressman, Sam Liccardo. I think without SB 908, a lot of records won’t see the light of day. And that’s bad.”

The bill sat in the Senate Rules Committee but never got a hearing in a policy committee, essentially dying behind closed doors. It was rewritten last week as a bill related to fentanyl deaths in children ages 0 to 5.

Senate Pro Tem Mike McGuire, who chairs the Rules Committee, didn’t respond to requests for comment. Neither did Cortese’s office.

The lawsuit and subsequent legislation came about after San José Spotlight exposed how Liccardo directed a resident to use his Gmail account and vowed to delete a thread from his government account to skirt disclosure. This news organization uncovered how the ex-mayor primarily used his personal accounts and phone to conduct public business and many of those communications never turned up in public records requests.

The lawsuit, which included the First Amendment Coalition as a co-plaintiff, cost the city at least $500,000 in attorney fees. The case prompted a county judge to admonish San Jose for routinely allowing this practice by high-ranking officials.

San Jose isn’t the only city in California under fire for its lack of transparency and the misuse of private email for public business.

Hidden conversations

In Anaheim last year, councilmembers cracked down on city employees’ use of private phones to conduct city business — and avoid public oversight — after federal investigators found that lobbyists and Disneyland resort interests controlled city hall and heavily swayed decision making. In San Diego, KPBS revealed how city officials used a disappearing messaging app to communicate with each other. Similar issues have been documented in San Francisco and Stockton.

But San Jose is a repeat offender when it comes to violating state transparency laws. The California Supreme Court’s landmark 2017 ruling — that declared communications on private accounts or devices are considered public records if they deal with city business — stemmed from an earlier dispute in San Jose. Liccardo was a councilmember at the time.

That high court’s ruling in 2017 came after the city was sued in 2009 for refusing to release emails about a publicly-funded development proposed by former Mayor Tom McEnery, a supporter of Liccardo.

Despite the demise of SB 908, San José Spotlight co-founder Ramona Giwargis said the fight for transparency is not over. San José Spotlight co-sponsored the bill along with the California News Publishers Association. It had earned support from the First Amendment Coalition, the California Broadcasters Association, Institute for Nonprofit News, LION Publishers and the Society of Professional Journalists’ local Northern California chapter.

“We are disappointed that SB 908 did not get the consideration it deserved, but we are not giving up. We’re going to continue working on this issue,” Giwargis said.  “Californians deserve transparency and accountability when it comes to the conduct of their government. It’s time for the Legislature to act and muster the political will to advance these common-sense solutions.”

First Amendment and good government advocates say changing the state’s public record and transparency laws is not easy. It often takes years and multiple attempts.

“It can take several tries before legislative reforms are made,” First Amendment Coalition Legal Director David Loy told San José Spotlight.

Olson pointed to the milestone police records disclosure bill known as the “Right to Know Act” — or Senate Bill 1421 — as a prime example. It took roughly a decade for the policy, which expanded the California Public Records Act to apply to police records relating to officer use-of-force incidents, sexual assault, and acts of dishonesty, to be signed into law.

“That was decades in the making before Sen. Nancy Skinner pushed it through,” Olson said.

Loy doesn’t discount trying to introduce SB 908 again in some other form.

“This is obviously a disappointment, but I don’t think I consider this the end of the game,” Loy told San José Spotlight. “I consider this the first move.”

Contact Brandon Pho at [email protected] or @brandonphooo on X, formerly known as Twitter.