San Jose Mayor Wants His Emails Released In Records Battle

By Tran Nguyen, San Jose Spotlight

May 6, 2022

A year after San Jose City Hall denied releasing emails related to Mayor Sam Liccardo’s advocacy group, the mayor is asking the city to release the records.

The yearlong fight for records by San José Spotlight 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.

“I’m encouraged to see Mayor Liccardo’s recommendation to approve our appeal and release the emails,” said Ramona Giwargis, San José Spotlight co-founder and CEO. “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. 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.”

San José Spotlight 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 San José Spotlight 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.

San José Spotlight maintains the emails about the mayor’s nonprofit—sent and received from city servers—deal with public business and should be disclosed under the state’s public records law.

City Attorney Nora Frimann said only the City Council has authority to review the records and waive any attorney-client privilege.

“If the City Council decides to waive the attorney-client privilege for these three emails, the waiver applies to all future requests for these three emails only,” Frimann wrote in a memo.

Liccardo, whose employees’ communication is the subject of the public records request, is now asking his colleagues to approve the appeal.

“As explained in the (city attorney’s office) memo, the mayor is unable to waive attorney client privilege for the city; only a council majority can do so,” Liccardo’s spokesperson Rachel Davis told San José Spotlight. “The mayor filed a memo advocating to release the documents immediately after this item was placed on the 5/10 council discussion by staff, which was his first opportunity to weigh in on the process.”

A yearlong fight

San José Spotlight argues communications related to the mayor’s nonprofit are public records. The appeal comes as San José Spotlight 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, San José Spotlight 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 the city to conduct a second search of records and to provide some details about the withholding of emails in a privilege log.

San José Spotlight 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 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 San José Spotlight’s lawsuit against the city and Liccardo.

“These cases are highly fact-intensive and depend on case by case analysis,” Loy told San José Spotlight, 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 tran@sanjosespotlight.com or follow @nguyenntrann on Twitter.

The story will be updated.

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