San Jose ordered to divulge missing details about withheld records
San Jose Mayor Sam Liccardo is pictured in this file photo.

    After months of refusal, San Jose will be forced to disclose critical details about the records it’s withholding—a victory for San José Spotlight and the First Amendment Coalition.

    At a Thursday hearing, Santa Clara County Superior Court Judge Julie Emede ordered the city to produce a new log disclosing details about the hundreds of records it’s shielding, such as names of senders and recipients of emails, topics of discussion, how the communication happened and why the city is refusing to release it. The city revealed it’s withholding more than 300 records but refused to divulge the senders, receivers or even the general subject matter.

    “It’s in the city’s best interest to provide as much information to avoid further litigation,” Emede said during the hearing. The city must produce the list by Dec. 7.

    San José Spotlight and the First Amendment Coalition sued the city and Mayor Sam Liccardo in February after this news organization revealed how the mayor uses his private Gmail for city business and deleted emails from his public account.

    San José Spotlight’s attorney Karl Olson said the order is a step in the right direction.

    “We’re moving the ball forward,” Olson told San José Spotlight. “From the very beginning, we felt like we absolutely had to get a privilege log for the judge to really have an adequate opportunity to assess whether the withholding was proper. So we’re happy that she ordered that.”

    The Thursday ruling came after this news organization revealed how the city improperly withheld public records, redacted information without adequate reasoning and failed to conduct thorough searches for records. The lawsuit also alleges the city routinely skirts public records law—preventing the public from being able to scrutinize city officials’ interactions with lobbyists and special interests. The city has denied all claims in the lawsuit.

    Amid the litigation, the city released 132 pages of previously withheld documents last month without explanation. The emails revealed Liccardo’s conversations with city officials and consultants on issues like homeless housing, the airport connector and gun control.

    First Amendment Coalition Legal Director David Loy argued Thursday that Liccardo should testify under oath about his private email use, pointing to an incident where San José Spotlight discovered the mayor vowing to delete a public email.

    The deleted email thread—which dealt with public business—was not turned over under a public records request.

    “This case is really about full public disclosure of how the mayor does public business on personal accounts,” Loy said. “And we have no reason to believe that the search was complete, thorough and adequate, and it’s necessary to determine how and why they dropped the ball, and what else is missing before we can even get to the merits.”

    Katie Zoglin, senior deputy city attorney, argued the city can answer Loy’s questions without Liccardo testifying.

    “There are different ways that are less intrusive than a deposition,” Zoglin said, adding the mayor could answer questions through a list of questions or a declaration.

    Emede did not order Liccardo to testify, saying it’s “premature” for the case.

    “The issue in this case is not necessarily whether or not the mayor’s communications practices are ideal or even proper, except to the extent that they address the question of whether or not the city has conducted a reasonable search and disclosed nonexempt documents in response to the request,” the judge said.

    Olson said because the judge denied the request without prejudice, “the door is not closed to that.”

    “She wasn’t saying never, she was just saying not now,” he said, adding he plans to revisit the request next year.

    San José Spotlight and First Amendment Coalition will file opening briefs in January. The next hearing is set for March.

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

    Reporter Joseph Geha contributed to this report. 

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