San Jose's former mayor and city violated transparency laws: judge

FILE - San Jose Mayor Sam Liccardo on Tuesday apologized for attending a Thanksgiving gathering that broke Californias rules for gathering.

Former San Jose Mayor Sam Liccardo and the city violated state transparency laws by failing to prove they adequately searched his private texts and emails for public records, a judge has ruled.

In response to a lawsuit from San Jose Spotlight and the First Amendment Coalition, Santa Clara County Superior Court Judge Thomas Kuhnle wrote in an Aug. 29 order that Liccardo failed to provide details about how he attempted to locate public records at the center of the case.

The order marks a clear victory for transparency and the public's right to know, attorneys for San Jose Spotlight and the First Amendment Coalition said.

"This is a big victory in principle," First Amendment Coalition Legal Director David Loy told San Jose Spotlight. "The court was very clear--the city failed in its obligations and the former mayor failed in his obligations to be fully transparent and to conduct a proper search for records."

Kuhnle previously ordered Liccardo and Rhonda Hadnot, then chief operations officer for Liccardo, to detail their search procedure and public records training in declarations to the court. The order said the submitted declarations were too generalized.

"They say nothing about what they did to search Liccardo's private email and text message accounts for records responsive to the particular requests at issue here. There are no details," Kuhnle wrote. "They do not disclose the actual keywords used, the date range of their searches, how many records the key words flagged, or how many records were withheld because they were privileged or did not concern city business."

Kuhnle also admonished San Jose for its practice of letting high-ranking officials use private accounts for public business without requiring alternative measures to ensure the records are centralized. He listed example practices from a prior public records case involving San Jose and Liccardo that went to the California Supreme Court in 2017, such as requiring "that employees use or copy their government accounts for all communications touching on public business."

"California Public Records Act compliance is burdensome. But as demonstrated here, the task becomes more formidable when public officials use private email and text message accounts to conduct public business," Kuhnle wrote.

Loy said such simple measures like those highlighted by Kuhnle could help avoid public records issues in the future for San Jose.

"They could save themselves all this trouble if they would simply do the common sense thing and require employees and elected officials to use official accounts, or at least copy official accounts, and retain the records and follow those protocols," Loy said.

Karl Olson, a First Amendment lawyer representing San Jose Spotlight in the case, said the order is "complete vindication" for San Jose Spotlight and the First Amendment Coalition.

"I think it's a very strong message to public officials like Liccardo that you can't conduct stealth government," Olson said. "Frankly I think former Mayor Liccardo should be ashamed of himself. I think this brings complete disgrace to him."

Olson said he hopes city leaders will take action to change policies around public records compliance as a result of this order.

The order from Kuhnle comes after this news organization previously revealed how the city improperly withheld public records, redacted information without adequate reasoning and failed to conduct thorough searches for records

The lawsuit also alleged the city routinely skirts public records law--preventing the public from being able to scrutinize city officials' interactions with lobbyists and special interests. The city denied all the lawsuit's claims during the litigation.

In July, Kuhnle ordered the city to turn over at least 200 pages of records from a list of 327 the city continued to withhold after more than a year of litigation.

"We're grateful the court affirmed what we knew all along--San Jose and former Mayor Liccardo broke the law," Ramona Giwargis, co-founder and CEO of San Jose Spotlight said in a statement. "This is a wake-up call for San Jose City Hall. Officials in Silicon Valley and across the state should use or copy a government account when conducting public business, as suggested by the California Supreme Court. San Joseans deserve a transparent, honest and accountable government, and we won't stop fighting for it."

City Attorney Nora Frimann did not immediately respond to requests for comment.

Liccardo said this news organization's public records requests "required very expansive searches" and hours of city staff time.

"While the city attempted in good faith to comply with these burdsome requests, if the judge deemed that the city should have provided more specific information about how we conducted those searches or how we were trained, then we will happily provide that information," Liccardo added.

Loy hopes the city and Liccardo get the message loud and clear from the court's strong ruling.

"You broke the law. You did not conduct an adequate search, and that has significant consequences to the city. The city is now on the hook for significant attorney fees and spent a lot of time and trouble litigating this case," Loy said. "There needs to be a fundamental shift in the culture of transparency in which transparency and accountability need to be thought of as the first duty of democratic government."