San Jose lawsuit sparks legislation to bolster government transparency

From Stockton to Anaheim and San Jose, government officials across California use personal email accounts and texts to do the public’s business—and those messages often never see the light of day because public agencies can’t access them.

Now, a San Jose legislator is working to change that.

State Sen. Dave Cortese on Monday introduced a bill that would require public officials to forward communications on personal accounts and devices that deal with public business to an official channel. If approved, it would ensure there’s a record of those messages that can be accessed and publicly released when requested. It was inspired by San José Spotlight’s recent successful public records lawsuit against the city and its former mayor.

Senate Bill 908 applies to local and state appointed and elected officials, as well as public sector employees. Officials would have 20 days to forward the communications to a government account or server.

“I authored this bill because I know we can do better in providing the transparency and integrity in our democracy that our constituents and taxpayers deserve,” Cortese told San José Spotlight. “Our children, grandchildren and future generations will benefit from our efforts.”

The San Jose lawmaker’s bill comes after his city faced significant controversy and legal trouble for the second time in six years over the misuse of private email and texts to avoid disclosure.

San Jose first made national headlines after it was sued for refusing to release emails about a publicly-funded development proposed by former Mayor Tom McEnery. The case, filed in 2009, rose to the California Supreme Court which made a landmark determination in 2017 that communications on personal accounts or devices are public records if they deal with city business. The high court suggested officials use or copy a government server—mirroring Cortese’s bill—when communicating about public business.

Despite that ruling, former San Jose Mayor Sam Liccardo—a councilmember when the case was filed—primarily used his Gmail account for city policy and government work. He deleted a public record and encouraged a resident to email him on his personal account to circumvent the law. Many emails and texts from his personal account could not be found when requested by this news organization.

San José Spotlight and the First Amendment Coalition sued the former mayor and city in 2022. A judge in August ruled that Liccardo failed to adequately search for public records on his personal accounts and that the city violated the California Public Records Act.

Preserving public records

SB 908 would effectively create a statewide process for preserving records from personal accounts and ensuring agencies have a way to access them and comply with the law.

The bill is patterned after federal regulations that prohibit the use of personal electronic accounts for public business unless messages are copied or forwarded to an official account. It’s sponsored by San José Spotlight and the California News Publishers Association, and has earned support from the California Broadcasters Association and First Amendment Coalition.

Karl Olson, a prominent media law attorney who represented San José Spotlight in its 2022 lawsuit, co-litigated the pivotal 2017 case before the California Supreme Court. As an attorney with three decades of public records experience, he said the abuse of private email and texts is widespread across the halls of power in California.

“We’ve seen up and down the state that a lot of politicians are not taking that ruling seriously and there’s extensive use of texting about public business which makes it harder to retrieve the records,” Olson said. “I strongly believe in Liccardo’s case it was intentional, but I think there are some public officials who might do it for reasons of convenience. There’s absolutely no reason that California should not do what the federal government does.”

Anaheim policymakers last September cracked down on using private phones or devices for city business after an investigation found officials used them to skirt the state’s public records law. Councilmembers voted to require the use of government phones and forbid city business on personal accounts. They will also mandate officials to forward messages to official accounts. The policy is in response to reports of heavy influence from lobbyists and Disneyland resort interests inside Anaheim City Hall.

Brittany Barsotti, general counsel for the California News Publishers Association, said Cortese’s bill is about more than expanding access for journalists—many of whom frequently call her association’s legal hotline about public officials across the state using private email to skirt the law. It’s about the conduct of government officials who have the power to make decisions that affect residents for decades to come—from policy decisions to budgetary and fiscal issues.

As in Liccardo’s case, emails released from his personal account after the lawsuit was filed involved significant policy decisions that affect the livelihoods of San Joseans. The former mayor, who’s now running for Congress, repeatedly used Gmail to discuss Google’s massive downtown development, a growing homelessness epidemic, economic development and other critical city issues.

Barsotti emphasized that Cortese’s bill simply clarifies a process to preserve what the courts have already determined are public records.

“The majority of CNPA’s legal helpline questions are about access to public records,” Barsotti told San José Spotlight. “Without a process to preserve these records the public misses out on important information. Otherwise officials are free to say they have no records, when they know that is not the case. There is no independent third party like a city clerk who is even able to search to see if there are responsive records.”

Contact Ramona Giwargis at [email protected] or follow @RamonaGiwargis on X, formerly known as Twitter.