San José Spotlight’s public records appeal headed to City Council

Six months after San Jose City Hall denied releasing emails related to Mayor Sam Liccardo’s advocacy group, a commission wants the City Council to weigh in on the issue.

And the protracted fight for documents has revealed a significant flaw in the city’s appeals policy—and could lead to changes.

The issue stems from San José Spotlight’s public records request in May for emails between Liccardo and his staff related to Solutions San Jose, the mayor’s advocacy organization that’s attempted to shape public policy. The city denied all communications claiming they are subject to attorney-client privilege.

San José Spotlight appealed the decision in June to the city’s Rules and Open Government Committee, which was also prohibited from reviewing the emails due to the alleged attorney-client privilege. The committee directed city officials to create a log disclosing the dates, senders and receivers of the withheld emails. The log revealed three emails between Liccardo’s chief of staff, Jim Reed, and the city attorney—all sent and received on a weekday during business hours.

The committee still did not release the emails. San José Spotlight appealed the decision in October to an independent, citizen-led board, whose duty is to investigate public records request appeals.

But the Board of Fair Campaign and Political Practices said its hands are tied Wednesday night, as the city attorney’s office—and an outside attorney who’s contracted to aid the board—said it has no authority on the matter. The board, despite being a step in the city’s appeals process, was not allowed to view the records either.

“I just don’t know what this board would do, if anything, because we’re sort of being told that we can’t see the underlying memos, and we may not have jurisdiction over the issue, and we’re not the final say,” Commissioner Louis Silver said.

Attorneys Steven Miller and Jessilyn Ho of Hanson Bridgett said state law doesn’t allow the city to break attorney-client privilege—which would happen if the board or Rules Committee viewed the emails—without the City Council’s approval. The attorneys also noted that while the attorney-client privilege could extend to a third-party like a consultant, the city board doesn’t meet that requirement. The attorneys suggested that San Jose revise its policy to clarify the board’s role in the public records appeals process since it is barred from viewing certain records.

“This board will not be able, in my judgment, to review the records that have been established as privileged,” Miller said at the meeting. “You have no independent means of assessing the city attorney’s determination on privilege.”

The board voted unanimously to refer this news organization’s appeal to the City Council, who could review the documents in a closed session. It also asked the city to clarify the board’s roles in the records hearing process.

The revelation—and apparent loophole in the city’s policy—has left commissioners frustrated and confused.

“Do we just have to take the city’s word for it that these are attorney-client communications, or were we going to get an independent person who’s actually looking to communicate and confirm whether they are or not attorney client communication?” Commissioner Joe Lopez said.

The city attorney’s office said San José Spotlight could have bypassed appealing to the board, but Board Chair Adrian Gonzales said the city needs an independent hearing process for complaints.

“I think the whole point at the end, though, is that bodies like ours exist to restore public trust—that’s the point of the appeals process,” Gonzales said. “People want to know that they have an independent opinion, and that the people they’re appealing against aren’t involved in making decisions against them.”

Miller said the issue might be solved in court.

“I hear your frustration,” he said. “I think it’s not misplaced.”

San José Spotlight maintains 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. Now, the city will revisit its records policies to better clarify the board’s role in the process.

“This fight is about more than just three emails. This is about a major flaw in the city’s policy,” Ramona Giwargis, co-founder and CEO of San José Spotlight, told the board. “When it comes to public records, we don’t know what we don’t know—and that’s why we need you. That’s why we need an independent and objective pair of eyes to review documents and make a decision. This loophole means City Hall is effectively tying your hands and asking you to trust them. That isn’t good enough.”