Politics & Government
City Committee To Hear San José Spotlight's Appeal On Mayor's Emails
A decision is looming over emails between the mayor and his workers about his advocacy organization.
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June 22, 2021
A powerful city committee will decide Wednesday whether San Jose must turn over emails it’s shielding between the mayor and his workers about his advocacy organization.
Mayor Sam Liccardo launched Solutions San Jose, a 501(c)(4) nonprofit, in February. The organization advocates on a range of public policy issues, including reopening schools, water rate hikes and housing solutions, though it’s still unclear what the nonprofit’s purpose is. In June, the group hosted two housing panels featuring the mayor, one city official and other community leaders.
In early May, San José Spotlight filed a public records request for emails and texts related to Solutions San Jose from Liccardo and his office for the past six months. The city declined to release the emails, despite the fact that Solutions San Jose is lobbying and attempting to shape and influence public policies. The city cited attorney-client privilege—a decision that raised eyebrows among attorneys and open government advocates.
San José Spotlight appealed the denial to the city’s Rules and Open Government Committee. The committee, chaired by Vice Mayor Chappie Jones, will consider the appeal Wednesday and has authority to overturn the decision and direct the city to release the records.
“City Hall is stonewalling the release of public records and we are fighting back,” said Ramona Giwargis, co-founder of San José Spotlight. “We believe these records deal directly with the public’s business and they are being improperly withheld.”
San José Spotlight requested the records under the California Public Records Act, a law that gives the public the right to inspect and access “information concerning the conduct of the people’s business”—unless the records fall under an exemption. Exemptions include personnel records, pending litigation, police investigations and attorney-client privileged communications, among others.
To qualify for attorney-client privilege, a communication must involve active litigation or legal advice.
San Jose City Attorney Nora Frimann, whose ethical obligations under the State Bar of California is to the city and not individual officials, confirmed the city has not provided any legal service to the mayor about Solutions San Jose—except for “general advice.” Yet, she argues, the communications must remain privileged.
City officials are recommending the committee uphold the city’s decision to deny releasing the communications, adding that the mayor’s emails meet all requirements under statutory law.
“This exemption allows staff to have frank and candid conversations with their attorney,” the memo reads. “Disclosure would have a chilling effect on this ability.”
It’s unclear how the city attorney’s communication with the mayor about his non-city organization would constitute city business and must remain confidential, per CPRA’s definition of attorney-client privilege. Even if Liccardo or his team sent communications from private email accounts, they would need to be disclosed if they deal with public business.
The state’s public record law also allows agencies to release records even if they fall under exempt documents.
“The policy of government records transparency mandated by the PRA is a floor, not a ceiling,” reads the League of California Cities’ guide on public records. “Most exemptions from disclosure that apply to the PRA are permissive, not mandatory. Local agencies may choose to disclose public records even though they are exempt, although they cannot be required to do so.”
At least six residents sent letters of support to City Hall in favor of San José Spotlight’s push for transparency and demanding the city release the records.
“I want to voice my strong support for San Jose Spotlight’s request for emails and other electronic communications between Mayor Sam Liccardo and Solutions San Jose,” resident Bob Durham wrote to the committee. “The claim that all such communications are subject to attorney/client privilege stretches credulity to the breaking point; it’s simply not believable.”
A District 9 resident echoed the sentiment, adding that the stonewalling of records stands stark against the city’s mission to be transparent.
“(Solutions San Jose) is not a city entity yet Liccardo sends emails on behalf of the group using his title as mayor,” wrote Cass Kohler. “The City’s claim that every email he sends to this third party is attorney client privileged is an over reach and runs counter to San Jose’s and Liccardo’s commitment to open and transparent government.”
Click here to watch the meeting at 2 p.m. Wednesday.
Editor’s Note:
If you agree that emails related to public advocacy by Solutions San Jose should be released, join us by making your voice heard. You can show your support for San José Spotlight’s push for accountability by emailing city.clerk@sanjoseca.gov by 9 a.m. Wednesday.
You can also make a verbal public comment by following the steps below.
Contact Tran Nguyen at tran@sanjosespotlight.com or follow @nguyenntrann on Twitter.
San José Spotlight is the city's first nonprofit news organization dedicated to independent political and business reporting. Please support our public service journalism by clicking here.