Five months after San José Spotlight sued the city and its mayor over improperly withheld emails, the city refuses to say how many records it’s shielding. Now a judge will consider requiring the city to explain what it’s withholding and why in a court hearing next month.
This news organization and the First Amendment Coalition, a co-plaintiff in the lawsuit, will ask a Santa Clara County Superior Court judge on Aug. 24 to order San Jose to produce a log detailing withheld documents.
The log is essential to help the court make a decision in the case, said San Francisco media law attorney Karl Olson, who represents San José Spotlight.
“You have to know what they are withholding; otherwise, we’re shooting in the dark and the court doesn’t really have an adequate basis to make a decision,” Olson said. “It’s commonplace for agencies to provide a log after a lawsuit is filed.”
This is the first hearing since San José Spotlight filed the lawsuit in February. The lawsuit came after this news organization revealed how the city improperly withheld public records numerous times, 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.
San Jose refused to turn over a log citing the reasons it’s withholding records, forcing San José Spotlight to take it to a judge, Olson said. He also hopes the city will reverse a number of redactions—emails that were almost entirely blacked out—on previously released records.
San Jose has denied all allegations in the lawsuit. City Attorney Nora Frimann didn’t respond to inquiries about the hearing.
San José Spotlight is also looking to have Mayor Sam Liccardo deposed to better learn of his private email use later this year.
Seeking more transparency
San José Spotlight and the First Amendment Coalition sued the city and Liccardo after the mayor violated the state’s transparency laws last year.
The organizations 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 a 2017 California Supreme Court decision that began in San Jose. The 2017 case involved Liccardo—who was then a councilmember—and the city’s denial of public records. The court ruled public officials’ communications on private accounts or devices are public records if they deal with public business.
Liccardo, who was named in the 2017 lawsuit, has repeatedly disregarded the law, the lawsuit claims. In one instance, the mayor encouraged a resident, Scott Largent, to contact his private Gmail account and vowed to delete a public email on his government account in an attempt to shield it from disclosure.
The city denied the existence of emails related to the mayor’s conversation with Largent—until it learned San José Spotlight had copies of the emails. City officials then claimed the records request was “prematurely” closed out and took more than a month to release heavily-redacted emails. The email Liccardo deleted was never turned over.
The lawsuit is also 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—practices recommended by the California Supreme Court in 2017. San Jose declined to commit to the practice, Olson said.
“It’s disappointing that even after San Jose fought a case unsuccessfully to the Supreme Court on this very issue, the city is still fighting us,” said Olson, who represented the media in the 2017 case. “It’s something that one would hope that they would not be spending taxpayer money fighting us on.”
City Council hopefuls weigh in
San José Spotlight asked the mayoral candidates vying to replace Liccardo and all other City Council candidates whether they would commit to transparency laws and practices through three questions:
Would you commit to not deleting your emails for at least two years?
Would you commit to not using a private email to conduct public business?
If you do use a private account, would you commit to copying a government server, as encouraged by the California Supreme Court?
Eight candidates are competing in November for four seats—including San Jose mayor and City Council Districts 3, 5 and 7. Santa Clara County Office of Education board member Rosemary Kamei and incumbent Councilmember Pam Foley won their elections in June representing District 1 and 9, respectively.
Here are the responses from the candidates: