San Jose is preparing to pay half a million dollars to San José Spotlight and the First Amendment Coalition, two organizations that prevailed in a public records lawsuit against the city.
On Nov. 28, the San Jose City Council will consider a payment of $500,000 to the organizations to cover attorneys’ fees and costs accrued over approximately 18 months of litigation.
“We believe this was a hard-fought victory that helped vindicate the public’s right to know,” said Karl Olson, a First Amendment attorney representing San José Spotlight in the case. “And we hope that in the future there will be no need for parties to have to go to court to obtain public records.”
San José Spotlight and the First Amendment Coalition, which protects and promotes a free press, sued the city and former Mayor Sam Liccardo in February 2022 for violating the California Public Records Act. This long-standing law requires public agencies to disclose information about the public’s business.
In July, Santa Clara County Court Judge Thomas Kuhnle ordered the city to turn over hundreds of pages of records that were improperly withheld after being requested by this media outlet. In late August, Kuhnle found the city and Liccardo violated state transparency laws by failing to properly search his private texts and emails for public records.
The records law allows the “prevailing party” to recover reasonable attorneys’ fees from the public agency involved. The final amount proposed in this case is the result of negotiations between the city attorney and attorneys from San José Spotlight and the First Amendment Coalition.
“I appreciate the city’s willingness to consider resolving the issue through a settlement,” First Amendment Coalition legal director David Loy told San José Spotlight. “Given the scope of the issues in the case and the scope of the litigation, and the amount of time it took, I believe it is a fair and appropriate resolution.”
Work on this issue has taken about two years, Olson and Loy said, from the time San José Spotlight began formally challenging the withholding of public records until the end of the agreement on attorney fees.
“It was a complex case, there were many different records at play, multiple pieces of evidence and a number of very compelling, interesting and important issues,” Loy said.
City Attorney Nora Frimann declined to comment because the fee agreement is still pending.
In Kuhnle’s August ruling, he wrote that Liccardo and the city did not adequately prove how the former mayor searched his private accounts for records requested by San José Spotlight, and that Liccardo and the city’s statements about the search were too vague and included “no details.”
In September, Kuhnle denied a request from the city and Liccardo to show more evidence and provide further statements about how their personal email and text message accounts were raided.
Liccardo appears to disagree with the decision to pay attorneys’ fees.
“Our taxpayers would be better served by appealing (Kuhnle’s) refusal to consider evidence than by wasting $500,000 to incentivize attorneys to continue investigating public records claims,” Liccardo told San José Spotlight.
Olson said the Supreme Court has held that openness in government is essential to a functioning democracy.
“A big part of the problem was Mayor Liccardo’s excessive use of text messages to conduct public business. I don’t think that’s the best way to do public business,” Olson said.
He said the amount to settle attorneys’ fees in the case is reasonable and he “hopes and hopes” the city council will approve it.
Contact Joseph Geha at [email protected] or @josephgeha16 On twitter.