Smith: It’s time for San Jose to follow the law
San Jose City Hall is pictured in this file photo.

    San Jose prides itself on its so-called “sunshine” policies and transparency measures. But the truth is, the Bay Area’s largest city and its government are shrouded in secrecy and darkness.

    Six years ago, I was the plaintiff in a California Public Records Act lawsuit against San Jose, which resulted in a landmark California Supreme Court decision in my favor. That case stemmed from the city’s refusal to release important public records and emails that would shed light on a significant land deal in downtown San Jose involving a powerful politician, former Mayor Tom McEnery.

    The city fought me for over five years in that case, all the way up to California’s highest court. And it lost. The court not only ordered San Jose to pay my attorneys over a million dollars in legal fees, it made a critical ruling that had a major impact across the state. The court decided that when government officials conduct public business using private email accounts or devices, the records are subject to disclosure. They are considered public records, and you—the city’s residents and taxpayers—deserve to see them.

    Yet here we are again, fighting the same battle. San Jose is back in court—this time it’s being sued by San José Spotlight and the First Amendment Coalition—for skirting the Public Records Act. In this case, the city is improperly withholding emails, claiming communications don’t exist when they really do, inappropriately blacking out records and excessively delaying their release. Most of these emails belong to former Mayor Sam Liccardo, who almost exclusively used his private accounts and devices to conduct city business. Liccardo is even withholding emails having to do with public relations, talking points and op-ed articles, as if his attempts to burnish his image and stroke his own ego were the secret formula of Coke or contained nuclear codes.

    If it feels like deja vu, that’s because it is. My 2017 case also involved Liccardo’s communications from when he was a city councilmember.

    But there might be some hope for government accountability in San Jose.

    A new mayor, Matt Mahan, and four new councilmembers were sworn in last month. With a sea change of political leadership, I’m hopeful that San Jose can finally begin to fulfill its obligation to govern in a transparent, open and ethical manner. It’s what we deserve.

    San José Spotlight last year asked candidates for mayor and city council whether they would commit to either using or copying their government account when they communicate about public business, and whether they’d agree to retain records for at least two years as required by law. Everyone who responded, including Mahan, agreed to those commitments.

    Now let’s see action. I urge our new mayor and council to keep their word and do the right thing. As the Supreme Court has said, the future of our very democracy depends on it.

    Ted Smith is a longtime San Jose resident, attorney and advocate for government transparency and accountability. 

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