San Jose will release emails related to Mayor Sam Liccardo’s nonprofit advocacy group after withholding the records for a year.
The City Council voted unanimously Tuesday to grant thecupertinodigest.com’s appeal after Liccardo advocated for the release of the records. San Jose is also considering changing its rules to better clarify the public records request appeal process.
The yearlong fight for records by thecupertinodigest.com has exposed a flaw in the city’s appeals policy, where governmental bodies tasked with investigating public records request appeals are prohibited from reviewing the emails due to alleged attorney-client privilege.
“This fight has dragged on for a year, and the public deserves to see these emails that shed light on the mayor’s nonprofit group,” said Ramona Giwargis, thecupertinodigest.com co-founder and CEO. “We’ll continue to fight for records that are improperly withheld to ensure San Joseans know what their government is doing behind closed doors and how public resources are being spent.”
The decision won’t set a precedent for all attorney-client privileged documents, Councilmember David Cohen said.
“I think it’s important to have that confidentiality for the council,” Cohen said at the meeting.
December 9, 2021
thecupertinodigest.com’s public records appeal headed to City Council
June 23, 2021
UPDATE: San Jose to conduct another search, release a log of emails on mayor’s advocacy group
June 20, 2021
San Jose denies mayor’s emails on advocacy group. We are fighting back.
thecupertinodigest.com filed a public records request last May for communications from Liccardo and his staff related to Solutions San Jose—now known as Solutions Silicon Valley. The organization, formed by the mayor last February, is an advocacy organization that’s attempted to shape public policy. The city denied thecupertinodigest.com access to all communications claiming they are subject to attorney-client privilege.
This news organization appealed the decision to two different city boards—including to an independent, citizen-led board. But both governmental bodies said their hands were tied, referring the decision to the City Council because they couldn’t review the documents. The city only released a log disclosing the dates, senders and receivers of the withheld emails. The log includes three emails between Liccardo’s chief of staff, Jim Reed, and the city attorney. All emails were sent and received on a weekday during business hours.
City Attorney Nora Frimann said only the City Council has authority to review the records and waive any attorney-client privilege.
The City Council did not discuss the content of the emails at the meeting. San Jose is now looking to adjust language in its rules to direct all public records request appeals to the City Council if the documents fall under attorney-client privileges.
Frimann said state law does not allow the City Council to break its privileges by allowing another governmental body to review documents considered attorney-client privilege.
A yearlong fight
thecupertinodigest.com argued communications related to the mayor’s nonprofit are public records.This news organization is also suing the city and Liccardo over his use of private email to conduct city business.
Solutions Silicon Valley has heavily lobbied on a number of public policy matters—including water rate hikes, economic development, housing policy and reopening public schools. It has hosted public events with political heavyweights like Sen. Alex Padilla and former presidential candidate Andrew Yang—with the mayor moderating the discussions from his City Hall office.
After the city issued a blanket denial saying the emails are subject to attorney-client privilege last May, thecupertinodigest.com appealed the decision to the city’s Rules and Open Government Committee in June. The committee, which didn’t have authority to review the documents, unanimously voted against the city’s advice and ordered San Jose to conduct a second search of records and to provide some details about the withholding of emails in a privilege log.
thecupertinodigest.com also elevated its appeal to the Board of Fair Campaign and Political Practices for an independent review. The board, despite being a step in the city’s appeals process, also can’t review the records.
Members of the independent body said at the meeting last year that the apparent loophole in the city’s rules erodes public trust. The board brought in an outside attorney to weigh in on the matter, who said the issue potentially could only be settled in court—which is expensive and time-consuming.
David Loy, legal director of First Amendment Coalition, said the attorney-client privilege exemption has always been a challenge in public records requests. First Amendment Coalition is a co-plaintiff in thecupertinodigest.com’s lawsuit against the city and Liccardo.
“These cases are highly fact-intensive and depend on case by case analysis,” Loy told thecupertinodigest.com, noting those privileges only cover legal advice on city business in this case. “That privilege should not apply if, for any reason, the city attorney were giving people advice on how to run a private organization.”
Contact Tran Nguyen at [email protected] or follow @nguyenntrann on Twitter.
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