Judge orders San Jose mayor to list withheld public records
August 24, 2022
San Jose will provide a basic list of all documents it is withholding to San Jose Spotlight, months after city officials declined to say how many documents have not been released under the Records Act public.
San José Spotlight and the First Amendment Coalition sued the city and Mayor Sam Liccardo for improperly withholding emails in February. At her first hearing in the case on Wednesday, Santa Clara County Superior Court Judge Julie Emede ordered the city to produce a list including details of all withheld documents.
But the list, which must be delivered to the court in 30 days, will only include the dates, the form of communication, an indication of whether the communications have attachments and the reasons why the documents were withheld.
San José Spotlight attorney Karl Olson argued that the list also include senders, recipients and subjects of communications. Without this information, the court has no basic understanding to decide whether the documents are properly withheld, he said.
“It is not helpful for the city to provide a statement – without reference to particular documents – saying that everything I have done is a deliberative process, or that every document I have is the attorney-client privilege of the lawyer or a draft,” Olson said.
Wednesday’s decision came after the news agency exposed how the city improperly withheld public records on numerous occasions, redacted information without adequate reasoning and failed to thoroughly research the records. The lawsuit also alleges that the city routinely circumvents the Public Records Act, preventing the public from being able to examine city officials’ interactions with lobbyists and special interests.
San Jose has denied all allegations in the lawsuit.
Kathryn Zoglin, the city’s senior assistant attorney, argued that San Jose had no obligation to produce a lien log with such details for the trial. She added that the city is ready to produce a more simplified list to justify the documents it is withholding.
“What is (a newspaper) for? Zoglin said, adding that it hadn’t been helpful in previous trials. “If there’s a reason for a newspaper other than busy work on the part of the city, that would be a different case.”
Olson argued it was important to know who Liccardo was speaking to, pointing to emails obtained by San José Spotlight that revealed how Bloom Energy executive Carl Guardino may have had a say in the matter. a municipal policy benefiting his company. The emails show Guardino and Liccardo’s office was crafting the policy language just hours before the Dec. 1, 2020, city council vote, and the language that Bloom Energy helped write was added almost verbatim into the law. that the city eventually adopted.
“For (the city) to say that it is categorically forbidden to disclose who the mayor is talking to is inconsistent with the law and even with the city’s own municipal code,” Olson said, pointing out the city’s requirement for lobbyists to disclose their communication with municipal authorities. “Transparency in government is essential to the functioning of democracy.”
Judge Emede decided to order a basic list this week, but added that the court could order a lien log later.
“Mr. Olson, I completely understand your point of view, but I am also very aware of the cases that talk about the way our democracy works and that the disclosure of certain information could have a chilling effect on people who could be willing to engage in government in the future,” she said. “What I’m trying to do is strike a balance here.”
The city has until September 26 to complete its list of withheld documents. The court will hold another hearing in November to determine whether a full privilege log is needed and whether Liccardo will be filed for his private use of email.
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