UPDATE: San Jose board seeks outside review of records policies

A public records appeal from San José Spotlight has revealed a flaw in city policies and now an outside attorney will weigh in, potentially leading to policy changes.

The appeal prompted a citizen-led city board on Wednesday to question its role and ability to conduct independent reviews of complaints.

The Board of Fair Campaign and Political Practices is tasked with hearing appeals to public records requests, but it cannot even review the emails being withheld in some cases — an apparent gap in the city policy.

“I hear frustration from the public,” Board Chair Adrian Gonzales said. “It makes people distrust the government. When the law says that this is an independent appeals process, and then they appeal to us, and then the city takes a stance that we can’t participate.”

In a unanimous decision Wednesday night—against the city’s advice—the board voted to seek input from the city’s contracted law firm Hanson Bridgett on its role in hearing public records appeals, especially for sensitive or confidential documents. Board member Daniel Damma was absent from the meeting.

San José Spotlight is in a months-long fight with the city over the release of emails between Mayor Sam Liccardo’s office and the city attorney about the mayor’s lobbying group, Solutions San Jose.

Solutions San Jose has heavily lobbied on public policy matters, including water rate hikes, economic development, housing policy and reopening public schools. It has hosted public events with political heavyweights like Sen. Alex Padilla and Andrew Yang — with the mayor moderating the discussions from his City Hall office.

This news organization in May requested emails related to Solutions San Jose, a nonprofit advocacy group Liccardo formed in February. The city issued a blanket denial, saying the emails are subject to attorney-client privilege. San José Spotlight appealed the decision to the city’s Rules and Open Government Committee in June, which unanimously voted to conduct a second search of records and to provide some details about the withheld emails in a privilege log.

When the scarce details from the log raised more questions, San José Spotlight elevated its appeal to the Board of Fair Campaign and Political Practices for an independent review, a process allowed by city policy.

But the city attorney’s office, which denied the release of emails, told the board Wednesday that it has no authority to even access the documents. Allowing the board to review the emails would destroy the attorney-client privilege.

The city’s Rules committee also did not see the emails before voting on the appeal in June.

“The process is deeply flawed if two city entities — the Rules and Open Government Committee and your board — are identified as decisionmakers in the appeals process but yet cannot even review the records in question,” San José Spotlight co-founder and executive director Josh Barousse said.

“The Rules Committee made its determination without seeing the emails either — meaning, they have to take staff’s word for it,” he continued. “This seems like a highly problematic policy that warrants review.”

San José Spotlight argues that emails about the mayor’s nonprofit—sent and received from city servers—deal with the public’s business and should be disclosed under the state’s public records law.

Board member Louis Silver, who’s a lawyer, said he’s also troubled by the process.

“I don’t know how I could make a vote to either sustain or overrule the appeal without having anybody actually review the documents,” Silver said.

It is “an inherent conflict of interest,” Gonzales added, referring to having the city attorney’s office deny the disclosure of records and also recommended for the independent board to deny or refer the complaint — without a chance to review the documents.

“It’s the problem the city created when they created our structure without staffing and our independent legal staff,” he said. “I want to make sure that we have a certain level of independence.”

But Senior Deputy City Attorney Mark Vanni said that only the City Council can review attorney-client privileged communications and decide whether to release them.

“In addition to civil litigation where you have a judge weigh in on attorney-client privilege, you also have the client that can choose to waive the privilege, and in this case the client is the City Council,” Vanni said.

A months-long battle

The log, released in late June, divulges limited details about the withheld emails, including email addresses of senders and receivers, as well as the date and time of when the emails were sent. It does not disclose the content of the emails.

Frimann told San José Spotlight in June that communications between her office and the mayor’s office about Solutions San Jose began after the mayor’s office reached out for advice. But the thread of three emails sent in February—around the same time when Solutions San Jose became active— shows the city attorney’s office emailed Reed first.

The emails were sent during business hours on a Friday, between 2:30 p.m. and 5:15 p.m., also raising questions about the use of public resources on the mayor’s private organization.

The Wednesday hearing is the latest development in a months-long public records fight between San José Spotlight and the city.

The board did not decide whether to overrule or sustain San José Spotlight’s appeal, but voted to defer the item to its next meeting to allow the outside attorney time to review the appeals process.

Attorney David Snyder, who leads the First Amendment Coalition, also acknowledged that the attorney-client privilege exemption complicates the issue.

“Unless there’s some arrangement made, any third-party looking at these communications directly would arguably destroy privileges for everybody,” Snyder told San José Spotlight. “But it also speaks to the potential abuse of the attorney-client privilege… (the exemption) requires agencies asserting this to act in good faith, and to not over assert the privilege.”

The question about whether these emails fall under attorney-client privilege also remains unclear to him.

“There are some red flags here for me,” he said. “The fact that what we’re talking about here is a nonprofit, not a city agency, raises questions about whether this is truly within the scope of any attorney-client relationship.”

Contact Tran Nguyen at [email protected] or follow @nguyenntrann on Twitter.