Mayor Sam Liccardo was on the San Jose City Council when a judge ruled that personal emails of public officials are public records. That decision set the precedent for the lawsuit he now confronts. Courtesy San José Public Library CC BY-SA 2.0
By ALLYSON ALEKSEY
San Jose Mayor Sam Liccardo will term out this year, but ongoing litigation between his office and a local publication will clearly continue after he leaves office.
Liccardo faces accusations of using a personal email account to conduct official city business and withholding public information contained in numerous email exchanges. A lawsuit filed eight months ago by the news site San Jose Spotlight and the First Amendment Coalition (FAC) claimed that the City of San Jose and Liccardo “continued to engage in extensive work-related correspondence on his non-governmental electronic devices.”
Spotlight reported on Oct. 10 that the city finally released 132 pages of documents following a judge’s order that was delivered to the city in August.
The lawsuit filed on Feb. 3 with the Santa Clara Superior Court seeks to enforce the public’s right of access to communications sent or received by elected officials on private email accounts, if the correspondence pertains to government business.
The 2017 California Supreme Court decision cited in the lawsuit dealt with a very similar situation in the same municipality. City of San Jose v. Superior Court, San Jose city officials, including then-councilmember Liccardo, were accused of withholding public records requested by San Jose resident Ted Smith. San Jose maintained that records sent to a private email address are not public records under the California Public Records Act (CPRA) because they were not “prepared, owned, used, or retained” by the city.
The Court disagreed, and held that “a city employee's writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account” That decision set a new precedent that this pending litigation is leaning on."
In a press release, the FAC asserted that the lawsuit to enforce the CPRA “takes aim at [Liccardo’s] use of a private email to do city business in secretive ways.
Karl Olson, attorney for San José Spotlight, told California Local that the case is about holding officials accountable.
“Without public access to records, there’s no way for the taxpayers and the public to verify that public and elected officials are acting in the best interests of the public, and not the best interests of their friends, cronies and campaign contributors,” said Karl Olson, attorney for San José Spotlight.
Chief of Staff Claims ‘Good Faith’
Eight month’s before last week’s release of 132 pages of withheld documents, Liccardo’s Chief of Staff, Jim Reed, released a statement claiming that the mayor’s office was withholding nothing.
“Staff have spent hundreds of hours reviewing and producing thousands of pages of documents in response to multiple Public Record Act requests from a single entity, San José Spotlight,” Reed said in the statement. “Although our team mistakenly missed two emails in our good faith effort to respond to one PRA request, we provided both of those emails in a subsequent request. We have implemented additional procedures to minimize such mistakes and ensure we continue to promptly and completely comply with PRA requests in the future.”
Spotlight co-founder and CEO Ramona Giwargis responded to Reed’s statement the next day on a podcast produced by the non-profit publication.
“[Reed] did not address the Mayor’s use of private email,” she said in an interview with podcast editor Nick Preciado. “To [Reed’s statement] that the city and its officials spent hours digging through public records and trying to fulfill our request, I would respond that it is their job and legal obligation as government officials to be searching emails and turn over records when they receive a public records act request.”
On July 29, Spotlight reported that petitioners asked a Santa Clara County Superior Court judge to order San Jose to produce a log detailing withheld documents. Nearly six months following the lawsuit, the city still did not reveal how many records it’s shielding, the publication said.
Santa Clara County Superior Court Judge Julie Emede ordered the city to produce a list including details of all the withheld documents on Aug. 24, due to the court within 30 days. The City provided a list of some withheld documents by the end of September, but it was very skeletal, Olson told California Local.
“[Documents received did] not include the author or addressee or even the subject matter of the 300-plus documents they are withholding,” he said.
The City has objected to a deposition, prompting attorneys for San Jose Spotlight and the First Amendment Coalition to prepare to file a motion to compel Liccardo’s testimony by the end of October, Legal Director for FAC David Loy told California Local.
“Only the mayor can properly answer questions about how he maintained his own personal accounts, and how much public business he did on private accounts,” Loy said.
Saying that it does not provide comment on pending litigation, Liccardo’s office declined to respond to inquiries from California Local.
Pulling Back the Curtain
In an opinion piece, San Jose Spotlight Editorial Advisor Moryt Milo said the suit “force[s] city officials, in particular the mayor, to pull back that Wizard of Oz curtain and govern with transparency and accountability.”
The legal costs are significant for the small news publication, Milo says, and the outcome offers no guarantees for transparency or policy change.
“On the surface it appears foolhardy,” she said, adding that Spotlight and the FAC were taking action “specifically to change how government conducts business.”
The next step is a hearing on Nov. 10 where the petitioners’ will motion to compel a log which includes author and addressee and subject matter of withheld documents, Olson explained.
Loy said it is immaterial that the lawsuit will not conclude before Liccardo leaves office at the end of the year.
“The lawsuit is a public records action, and the city is obligated to disclose public records, regardless of which mayor is [currently] in office,” he said.
