San Jose to pay six figures after losing public records lawsuit

San Jose is preparing to pay half a million dollars to San José Spotlight and the First Amendment Coalition, two organizations that prevailed in a public records lawsuit over the city.

The San Jose City Council on Nov. 28 will consider a $500,000 payout to the organizations to cover attorneys’ fees and costs accumulated over roughly 18 months of litigation.

“We think this was a hard fought victory that helped vindicate the public’s right to know,” Karl Olson, a First Amendment lawyer representing San José Spotlight in the case, said. “And we hope in the future it won’t be necessary for parties to have to go to court to get public records.”

San José Spotlight and the First Amendment Coalition, which protects and promotes a free press, sued the city and former Mayor Sam Liccardo in February 2022 for violating the California Public Records Act. This longstanding law requires public agencies to disclose information about the public’s business.

In July, Santa Clara County Court Judge Thomas Kuhnle ordered the city to turn over hundreds of pages of records that were improperly withheld after being requested by this news organization. In late August, Kuhnle found the city and Liccardo violated state transparency laws by failing to adequately search his private texts and emails for public records.

The records act allows the “prevailing party” to recover reasonable attorney’s fees from the public agency involved. The final amount proposed in this case is the result of negotiations between the city attorney and attorneys for San José Spotlight and the First Amendment Coalition.

“I appreciate the city’s willingness to consider resolving the issue by agreement,” First Amendment Coalition Legal Director David Loy told San José Spotlight. “Considering the scope of the issues in the case and the extent to which it was litigated, and the amount of time it took, I think it’s a fair and appropriate resolution.”

The work on this issue has spanned roughly two years, Olson and Loy said, from the time San José Spotlight began formally challenging the withholding of the public records through to the end of the agreement over attorneys’ fees.

“It was a complex case, there were a lot of different records at issue, multiple exhibits and a number of very compelling, interesting and important issues,” Loy said.

City Attorney Nora Frimann declined to comment because the settlement of fees is still pending.

In Kuhnle’s August ruling, he wrote that Liccardo and the city did not adequately prove how the former mayor searched his private accounts for records requested by San José Spotlight—and that declarations from Liccardo and the city about the search were too vague and included “no details.”

In September, Kuhnle denied a request from the city and Liccardo to show more evidence and provide more declarations about how his personal email and text accounts were searched.

Liccardo seems to disagree with the decision to pay attorneys’ fees.

“Our taxpayers would be better served by appealing (Kuhnle’s) refusal to consider evidence than by wasting $500,000 to incentivize lawyers to continue trolling ‘gotcha’ public records lawsuits,” Liccardo told San José Spotlight.

Olson said the Supreme Court has held that openness in government is essential to the functioning of a democracy.

“A lot of the problem was Mayor Liccardo’s excessive use of texting to conduct public business. I don’t think that’s the best way to do public business,” Olson said.

He said the amount to settle attorneys’ fees in the case is reasonable and he “hopes and expects” the city council will approve it.

Contact Joseph Geha at [email protected] or @josephgeha16 on Twitter.