San Jose is abandoning its commitment to transparency by adopting controversial protocols to limit public access to city records while also cutting out the only independent party that reviewed appeals to denied requests.
The San Jose City Council voted unanimously last week without discussion to advance a proposal from former Mayor Sam Liccardo to “reduce the fiscal burden” of City Hall’s job of providing public records to anyone, including media organizations. He claimed the city spends $2 million a year fulfilling such requests and wants to avoid “fishing expeditions” from journalists and others seeking records. His proposal, released weeks before he left office, sparked alarm and criticism from journalism and open government groups. And yet, current leadership is moving ahead with these changes.
The plan is part of the city’s biennial review of its ethics policies. The council decided to add “voluntary instructions” on its public records website detailing how the public should tailor requests to include keywords, dates, departments and other information to narrow the scope of records.
Journalism leaders said the idea of City Hall deciding what the public should ask for—and how requests should be crafted to limit them—is deeply troubling and signals a future full of transparency issues.
“In addition to our concerns that San Jose would curtail access, we are also concerned that the ideas proposed by Liccardo would run contrary to the California Public Records Act, and would do so without seeking necessary public input,” said a letter submitted last month from the Society of Professional Journalists’ Northern California chapter.
The former mayor also requested that city leaders explore state legislation to “curtail abuse of well-intentioned PRA requirements.” City administrators dismissed the idea, saying it isn’t one of San Jose’s legislative priorities and it would struggle to find a lawmaker to carry a bill that effectively hinders transparency.
“If the City Council prioritized changes to the Public Records Act, it appears that there is currently little appetite in the State Legislature to drive changes, given that any proposed change may be perceived by the public as an attempt to reduce public transparency and access to records,” City Manager Jennifer Maguire and City Attorney Nora Frimann wrote in a joint memo.
In August 2022, the city launched a new online portal to file and view public records requests. It’s also reviewing its record retention policies.
A change in the appeals process
One of the most significant changes approved by council focuses on appeals filed when public records are withheld—and was sparked by a yearlong fight from this news organization for records related to Liccardo’s advocacy group.
The city’s current process allows requesters to appeal a denial of records to the city’s open government manager or the council’s Rules and Open Government Committee—in either order. If the appelant isn’t satisfied with the outcome, they could file a complaint with an independent commission called the Board of Fair Campaign and Political Practices (BFCPP). They could also appeal directly to the San Jose City Council.
But appealing to the BFCPP was the only step in the process that allowed for an independent review without the involvement of city administrators or elected officials directly impacted by the release of records. The city is also proposing that any records appeals dealing with attorney-client privilege go directly to the city council.
“Since the attorney-client privilege is held by the council, it did not make sense that these types of records would not go straight to council,” Chief Deputy City Attorney Rosa Tsongtaatarii said.
These changes come after San José Spotlight in May 2021 filed a records request for communications from Liccardo and his staff related to Solutions San Jose—now called Solutions Silicon Valley. The organization, formed by the mayor last fall, is an advocacy group that’s attempted to shape public policy in and around San Jose. The city denied access to all communications claiming they’re subject to attorney-client privilege. This news organization appealed to three legislative bodies before the city council released the withheld records a year later.
But one of those bodies—the BFCPP—was forced to decide on the appeal without viewing the withheld emails because of the alleged attorney-client privilege. The lengthy fight for records exposed a flaw in the city’s appeals policy, where governmental bodies tasked with investigating appeals are prohibited from reviewing the public records.
Frimann said the board sought independent legal advice that confirmed it could not waive the attorney-client privilege—only the council could.
The controversial proposal from Liccardo comes after a legacy tainted by transparency-related lawsuits and violations. San José Spotlight and the First Amendment Coalition last year sued the city and Liccardo after revealing how the city repeatedly disregarded the law, redacted information without adequate reasoning and failed to conduct thorough searches for records. The lawsuit also alleges the city routinely skirts public records law—preventing the public from being able to scrutinize city officials’ interactions with lobbyists and special interest groups.
Karl Olson, a First Amendment lawyer who represents San José Spotlight, said he isn’t surprised by the move because of San Jose’s troubling history. He litigated a case in 2017 against San Jose related to its failure to comply with public records request laws.
“The city that has always been pathologically hostile to PRA requests doubled down on its pathological hostility,” Olson told San José Spotlight. “Every year, governments spend billions of dollars of taxpayer money and employ armies of public relations people at taxpayer expense to make people think that they are helping the public. You cannot give these people a blank check.”
Original by Jana Kadah for San Jose Spotlight.