In a lawsuit filed by San José Spotlight and the First Amendment Coalition against San José and its then-mayor, Sam Liccardo, for full disclosure of how much he was doing public business on private devices and accounts, the trial court recently issued a decision ordering Liccardo and a city staff member to show how they searched his personal emails and texts and directing the city to disclose numerous documents.
As the California Supreme Court held in 2017, messages about official business are public records whether they are sent on private devices or accounts. Liccardo often used personal texts or emails for city business, going as far as directing a constituent to contact him by personal email and saying, “I’m going to delete this email from my government account.”
The lawsuit challenged the city’s response to requests by San José Spotlight and FAC for messages about city business on Liccardo’s personal accounts or devices. After the lawsuit was filed, the city produced two batches of records it had previously withheld, one in October 2022 and another in March 2023. The city continued to withhold about 300 more records.
The trial court held the city and Liccardo failed to prove they made an adequate search of his personal texts and emails. The court ordered Liccardo and a staff member to declare under penalty of perjury “the procedures they used for searching Liccardo’s private email and text message accounts” and “the training they have received on separating public records and private communications.” The declarations must be filed within 30 days of the court’s order.
As reported by Spotlight, the court also ordered the city to turn over numerous documents that “deal with development deals, energy issues and the city’s budget and personnel issues,” but the court upheld the city’s refusal to disclose other records, for example a draft of Liccardo’s public statement about attending a Thanksgiving dinner in violation of then-existing public health rules. The court also declined to order the city to retain records for a specific time or require officials and employees to use or copy official accounts in messages emails conducting any public business.
The parties will return to court on August 23, 2023 for a case management conference to address any remaining issues.