San José Spotlight is suing San Jose, Mayor Liccardo over private email use

San José Spotlight has partnered with the First Amendment Coalition to sue San Jose and Mayor Sam Liccardo for improperly withholding public records in violation of the state’s transparency laws.

The organizations are seeking reforms to ensure more government transparency in San Jose and compliance with the California Public Records Act.

San José Spotlight, represented by nationally-recognized San Francisco media law attorney Karl Olson, and the First Amendment Coalition filed the suit Thursday morning in Santa Clara County Superior Court. Olson was involved in a landmark 2017 California Supreme Court case that involved Liccardo and the city’s denial of public records. That case changed state law by requiring public officials to release communications on private accounts or devices if they deal with public business. 

But Liccardo, who primarily uses his private email to conduct public business, has repeatedly disregarded the law, the organizations claim. In one instance, Liccardo encouraged a resident, Scott Largent, to use his Gmail account and vowed to delete an email thread from his public account to shield it from disclosure.

The city denied the existence of emails related to the mayor’s conversation with Largent—until it learned this news organization had copies of the emails. City officials quickly changed their tune by saying the records request was “prematurely” closed out before they could adequately search Liccardo’s accounts.

The city took more than a month to release the emails, which are heavily redacted. The email Liccardo deleted was never turned over.

Liccardo is named in the lawsuit in his both official and individual capacity.

In addition to taking aim at Liccardo’s use of a private email to do city business in secretive ways, the lawsuit cites numerous instances when the city improperly withheld a range of records, blacked out information without adequate justification and failed to conduct thorough searches for records that would shine light on public policy decisions.

Jim Reed, Liccardo’s chief of staff, released a statement Thursday claiming city officials spent “hundreds of hours” producing records and admitted to missing two.

“We have implemented additional procedures to minimize such mistakes and ensure we continue to promptly and completely comply with PRA requests in the future,” Reed said.

The city attorney declined to comment.

Olson said Liccardo’s prolific use of private emails to conduct public business and the city’s failure to turn them over in public records requests is a violation of the California Supreme Court’s decision.

“Mayor Liccardo seems determined to ignore or defy the Supreme Court’s ruling,” Olson said. “He apparently conducts nearly all of his city business on his private phone, apparently because it’s easier to cut backroom deals with his friends, lobbyists and corporate cronies that way. This makes him a repeat offender.”

The complaint 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.

“This is about democracy, and the people of San Jose’s right to know what their government is up to,” said San José Spotlight co-founder and CEO Ramona Giwargis.

The lawsuit challenges the city’s response to four public records requests by San José Spotlight or FAC dating back to December 2020.

“Our lawsuit aims to address what we believe is a large and ongoing problem in San Jose—the city’s failure to treat emails on personal accounts as public records—as records they are required to collect and produce to the public on request under California law,” said David Snyder, executive director of the First Amendment Coalition. “California law could not be more clear on this point. And yet the city has routinely behaved as if it is not.”

Pushing for change

The organizations are asking for a court order banning city officials from exclusively using their private accounts for city business and requiring them to copy such communications to their government accounts.

They’re also asking the city to search Liccardo’s private accounts and turn over records that are improperly withheld or redacted, in addition to ordering Liccardo and the city not to delete records which are less than two years old.

This week, San José Spotlight discovered new emails from late 2020 between Liccardo and San Jose-based Bloom Energy executives, including his close friend Carl Guardino. The emails show Guardino and his company helped craft language for an exemption to the city’s 2020 natural gas ban that Bloom Energy benefitted from. San Jose failed to provide those emails, along with others, when this news organization filed a public records request in December 2020—and again in a separate request in April 2021.

An official in the mayor’s office admitted this week the emails should have been released more than a year ago, calling it “an administrative overstep.”

“This is a huge problem for government transparency. So much city business is conducted via email on personal accounts,” Snyder said. “And it is obvious that San Jose is not searching for these emails in any thorough fashion—and, when they are, they are not producing records as completely or as fully as they could and should.”