Public Records Act Accusations: What San Jose Spotlight and Their Lawyers Didn’t Tell You
The California Public Records Act (PRA) is an important law to ensure transparency in government and accountability to the public. Recently, lawyers representing an online blog, San Jose Spotlight, filed a lawsuit against me and the City of San José, making accusations of PRA violations.
Specifically, they asserted that I told one resident that “I’m going to delete this email from my government account,” but neglected to mention that it was done in response to that resident’s explicit fear for his and his daughter’s physical safety if his e-mail was discovered by others. They also asserted that the City failed to disclose emails from my personal account in response to a public record act request, but didn’t mention that the emails were provided (along with thousands of others) in response to a subsequent request. Spotlight and its attorneys held a press conference to tell you about their lawsuit.
Here’s what they didn’t tell you:
Scott Largent, a San José resident, sent an email to me on November 19, 2020, identifying a confidential police informant by name, and then suggesting that he had information linking former San José Police (SJPD) Officer John Thompkins (who had previously been convicted of criminal conduct) and other SJPD officers to the death of that confidential informant. Mr. Largent had previously publicly admitted his own problems with the law, and his public conflicts with the San José Police Department previously resulted in both a civil lawsuit and in criminal prosecution.
In the email, Largent specifically stated that he had “safety” concerns for himself and his young daughter in relaying this information, and urged that he was “concerned that my Emails [sic] are accessible by a records request and this can make my life very difficult.” I informed Mr. Largent that to address his concerns, I would delete his email on my public account, and correspond with him on my private account if that made him more comfortable. As a former criminal prosecutor, I knew that California law routinely exempts public officials from disclosing information to the public about informants and whistleblowers, for an obvious reason: to protect the safety of the informant.
For whatever reason — inexplicably, given his professed fear of harm — Largent decided to share the email exchange with San Jose Spotlight several months ago. So, the blog sent a Public Record Act request for the emails that Largent already gave them, and ran a story about it on July 23, 2021.
Of course, by the time they held their February 3, 2022 press conference, San Jose Spotlight knew well the reason why the email was deleted. Their reporters already had Largent’s copy of the email–in which Largent clearly expressed his safety concerns–months ago. The story that ran seven months before even recited the reason for the lawfulness of withholding the email from the public, as cited by San José Assistant City Attorney Kevin Fisher:
“…the withholding of the email from disclosure would be proper to protect the privacy interest of the resident who sent the email, as that resident expressed a concern that he would be subject to retaliation for raising concerns about SJPD with the mayor.”
Why didn’t Spotlight mention any of these incredibly important facts in their press conference, or their story yesterday? Presumably because their July 23, 2021 story didn’t get much attention. Most other media outlets ignored their first story, for an obvious reason: when they shared all of the facts, it was obvious that the City followed the law to protect the safety of a resident. It wasn’t newsworthy.
So this time, Spotlight omitted the facts that made the story less newsworthy. They wrote a story that was more worthy of clickbait, and more repeatable–just not as truthful.
There is another accusation in the lawsuit: we failed to turn over two relevant emails in an earlier public records act request. That is also true — only partly: those two emails (along with thousands of other pages of private emails) were disclosed by my office in subsequent PRA requests to the same media source. Although the City Attorney’s office and my staff spent hundreds of hours responding to very extensive PRA requests that resulted in the production of thousands of pages of my personal emails, some emails got missed by staff assigned to comb through all of the emails. But now they have them, and have had them for several weeks.
In recent months, the City Attorney’s Office and my own staff have spent hundreds of hours of our staff time to comply with Spotlight’s PRA requests, at considerable taxpayer cost. We do so because the Public Records Act is important. But if it’s important, then it’s up to all of us–in elected office, and the media– not to mislead the public about it.