Ted Smith vs. City of San Jose

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JAMES McMANIS (40958) JOSHUA VOORHEES (241436) McMANIS FAULKNER 50 W. San Fernando Street, 10th Floor San Jose, CA 95113 Telephone: (408) 279-8700 Facsimile: (408) 279-3244 Email: ;voorhees@mcmanislaw.com Attorneys for Plaintiff, TED SMITH

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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA TED SMITH, an individual, Plaintiff, v. CITY OF SAN JOSE, a municipal entity; SAN JOSE REDEVELOPMENT AGENCY, a municipal entity; HARRY MAVROGENES, in his official capacity as Executive Director of the San Jose Redevelopment Agency; MAYOR CHUCK REED, in his official capacity as Mayor of the City of San Jose; PETE CONSTANT, in his official capacity as a Councilmember for the-city of San Jose; ASH KALRA, in his official capacity as a Councilmember for the City of San Jose; SAM LICCARDO, in his official capacity as a Councilmember for the City of San Jose; PIERLUIGI OLIVERO, in his official capacity as a Councilmember for the City of San Jose; MADISON NGUYEN, in her official capacity as a Councilmember for the City of San Jose; ROSE HERRERA, in her official capacity as a Councilmember for the City of San Jose; JUDY CHIRCO, in her official capacity as a Councilmember for the City of San Jose; KANSEN CHU, in his official capacity as a Councilmember for the City of San Jose; NORA CAMPOS, in her official capacity as a Councilmember for the City of San Jose; NANCY PYLE, in her
QMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ASENo.:

No.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF [GOV. CODE §§ 6250, et seq.]

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official capacity as a Councilmember for the City of San Jose; and DOES 1 THROUGH 20, Defendants.

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COlv1PLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CASE No.

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INTRODUCTORY STATEMENT
1. Plaintiff, TED SMITH (hereinafter "plaintiff'), brings this action to compel

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defendants, identified in paragraphs 12 through 25 (hereinafter "defendants"), to comply with California Public Records Act, Gov. Code sections 6250, et seq. 2. On or about June 1,2009, plaintiff served a California Public Records Request

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(hereinafter "CPRR") on the City of San Jose requesting thirty-two (32) separate categories of public records. A copy of plaintiffs CPRR is attached hereto as "Exhibit A."

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Plaintiffs CPRR was made pursuant to the California Public Records Act,

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codified in Government Code sections 6250 through 6277.
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The CPRR included requests for "any communications, documents,

correspondence, e-mails, calendar entries or meeting notes" created or received by the City of San Jose, the City's Redevelopment Agency, or any City Officials including the Mayor and City Councilmembers, relating to Tom McEnery, John McEnery, San Pedro Square Properties, Urban Markets, Barry Swenson, Sarah Brouillette, and several other downtown issues. See Items 1-10 of Exhibit A. The CPRR included requests for public records from Mayor Chuck Reed and specific Councilmembers including Pierluigi Oliverio and Sam Liccardo, as well as more general requests to all City Councilmembers. See Items 1-10, 19-21,23-24, and 27-29 of Exhibit A.
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The CPRR also demanded all electronic information relating to public business,

sent or received by Mayor Reed, Councilmember Oliverio and Councilmember Liccardo using his or her private electronic devices. See Items 27-29 of Exhibit A.
6.

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On July 24, 2009, the City Attorney's Office sent plaintiffs counsel a letter

stating that it would not be producing any public records created or maintained by the "Mayor, members of the City Councilor their staff using any type of personal digital assistant." The City claims that those records are not public records.

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records.

A true and actual controversy exists as to whether plaintiff is entitled to those

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CASENo.:

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Government Code section 6252 defines public records as "any writing
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." Gov. Code § 6252 (e). Under this definition, any document created by any City Official relating to the public's business is a public document regardless of its physical form. Plaintiff alleges as follows:

JURISDICTION AND VENUE

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Plaintiff brings this Complaint pursuant to Government Code section 6258. Venue is proper in this COUli because the acts and omissions complained of

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herein occurred in this judicial district. Further, defendants are all situated in, reside in, or work

lOin Santa Clara County.
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PARTIES
11.

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Plaintiff, TED SMITH, an interested party, served a California Public Records

Request on the City of San Jose and its Officials on or about June 1,2009. 12. Defendant CITY OF SAN JOSE (the "City"), is located in the County of Santa

Clara, California, and is a municipal corporation organized and existing under the laws of the State of California. 13. Defendant SAN JOSE REDEVELOPMENT AGENCY, a public organization

created by the City of San Jose, and governed by the San Jose City Council. 14. Defendant HARRY MAVROGENES, is the Executive Director of the San Jose

Redevelopment Agency, named in his official capacity as the Executive Director of the Redevelopment Agency. 15. Defendant CHUCK REED, is the mayor of the City of San Jose, named in his

official capacity as Mayor. 16. Defendant PETE CONSTANT is a member of the City Council for the City of

San Jose, named in his official capacity as a Councilmember. 17. Defendant ASH KALRA is a member of the City Council for the City of San

Jose, named in his official capacity as a Councilmember. 18. Defendant SAM LICCARDO is a member of the City Council for the City of

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San Jose, named in his official capacity as a Councilmember. 19. Defendant PIERLUIGI OLIVERO is a member of the City Council for the City

of San Jose, named in his official capacity as a Councilmember. 20. Defendant MADISON NGUYEN is a member of the City Council for the City

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of San Jose, named in her official capacity as a Councilmember. 21. Defendant ROSE HERRERA is a member of the City Council for the City of

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San Jose, named in her official capacity as a Councilmember. 22. Defendant JUDY CHIRCO is a member of the City Council for the City of San

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Jose, named in her official capacity as a Councilmember. 23. Defendant KANSEN CHU is a member of the City Council for the City of San

Jose, named in his official capacity as a Councilmember. 24. Defendant NORA CAMPOS is a member of the City Council for the City of San

Jose, named in her official capacity as a Councilmember. 25. Defendant NANCY PYLE is a member of the City Council for the City of San

Jose, named in her official capacity as a Councilmember.
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The true names and capacities, whether individual, corporate, associate,

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representative, or otherwise of defendants named herein as DOES I through 20 are unknown to plaintiff at this time, and are therefore sued by such fictitious names. Plaintiff will amend this complaint to allege the true names and capacities of DOES I through 20 when they become Imown to him. Each of DOES 1 through 20 is in some manner legally responsible for the violations oflaw alleged herein. 27. The acts or omissions charged in this Complaint as having been done by

defendants and the DOE defendants were authorized, ordered, or done by their officers, agents, employees, or representatives, while actively engaged in the management of the defendants' affairs. 28. Plaintiff is informed and believes and thereon alleges that at all times herein

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mentioned, each of the defendants was the agent and employee of each of the remaining defendants, and in doing the things hereinafter alleged, was acting within the course and scope
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of such agency and employment.

GENERAL ALLEGATIONS
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Plaintiff hereby incorporates by reference paragraphs I through 28, inclusive. Plaintiff is informed and believes and thereon alleges that defendants have failed

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to comply with their duty to provide public records under Government Code sections 6250, et seq. Plaintiff and the general public are being denied access to public records. 31. Plaintiff served the City of San Jose, and thereby all City Officials including the

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named defendants, with his CPRR on June 1,2009. 32. On July 24, 2009, the City's Attorney Office notified plaintiff that it would not

lObe providing any records which were created by City Officials while using a private electronic II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 device, even ifthey pertained to public business, and were sent or received by a City Official.
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On August 16,2009, the San Jose Mercury News published an article, "Many

Records Still Secret Despite San Jose's Promises ofOpennesss," which confirmed that the City, and its Councilmembers, possessed records responsive to plaintiffs June 1,2009, CPRR, and while the City did not produce these items to plaintiff, the City did produce them to the Mercury News. Councilmember Sam Liccardo provided a text message sent by Phaedra Ellis-Lamkins, which concerned a proposal to give "millions of city redevelopment dollars to former Mayor Tom McEnery." This record would be directly responsive to item 27 of plaintiffs CPRR, attached hereto as Exhibit A. 34. The August 16, 2009 Mercury News article states that City Attorney Rick Doyle

said that "unless the City Council, the Legislature or a court compels him to do otherwise, San Jose will not consider e-mails or text messages stored outside the city servers as official public records - regardless of whether the messages pertain to city business or even whether the phone or PDA used was partly paid for via a city subsidy." 35. On this same date, the Mercury News published an editorial: "Personal Texts

and E-Mails on Public Business Should be Public." In this piece, there was public outcry for the production of all records created by the City relating to public business, regardless of the electronic device on which they were created or received.
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COlvfPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CASENo.:

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36.

On August 17,2009, Mayor Chuck Reed issued a memorandum including

recommendations for the "Sunshine Reform Task Force." On page three (3) of his memorandum, Mayor Reed states, "[r]ecords of city business created with personal equipment, such as personal email, text messages, cell phones, social networking websites, and other new technologies should be covered by the California Public Records Act." A copy of Mayor Reed's August 17,2009 memorandum is attached hereto as "Exhibit B."

FIRST CAUSE OF ACTION
[Declaratory Relief]
37. 38. Plaintiff hereby incorporates by reference paragraphs 1 through 36, inclusive. An actual and immediate controversy has arisen and now exists between plaintiff

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and defendants related to their respective rights and duties. Plaintiff contends, and defendants deny, that the City must produce the records sought by plaintiff in his CPRR including e-mails, text messages, and other electronic information relating to public business, regardless of whether they were created or received on the City owned computers and servers or the City Officials' personal electronic devices.

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Plaintiff desires a judicial determination of his rights and defendants' duties

under the law regarding the above-mentioned California Public Records Act. 40. Plaintiff desires a judicial determination and declaration that defendants are

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required to produce all records pertaining to the public's business, created or received by City Officials, regardless of what electronic device was used.
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A judicial declaration is necessary and appropriate at this time, so that plaintiff

may ascertain his rights and defendants' duties under the law.

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PRAYER FOR RELIEF
WHEREFORE, plaintiff prays for judgment against defendants as follows: I. On the first cause of action, plaintiff requests a declaration, order and

judgment that defendants are required to provide the public records requested by plaintiff pursuant to Government Code sections 6250, et seq. 2. 3. For attorneys' fees, and other damages as allowed by law; For costs of suit incurred herein; and For such other and further relief as the Court deems proper.

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DATED: August 21,2009

Attorneys for Plaintiff, TED SMITH

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COMPLAINT FOR DECLARATORY AND INmNCTIVE RELIEF

CASE No.:

EXHIBIT A

(:IT~'()f A SAN]OSE
CAPlli\1. OF $I!.lCON VALLEY

Public Records Request Form
This form is not required to submit a request, but helps the City with tracking and responding.

To be Completed by the Requestor Name of Requestor: Ted Smith Agency/Company:

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ielO McManis Faulkner

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Please lell liS Izow yOIl wOlild likefor Ilze City to respond to your request:
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50 W. San Fernando Street Address: San Jose, CA 95113

Walk-fJtlPersoJlal Pick-Up

Phone: Fax: Email:

I (408) 279-8700 I (408) 279-3244
[ pzambrano@mcmanlslaw.com

-- Fax -- Email Mail I -- Other

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Reouested Documents (Please be as snecific as nossible)
Please See Attachment A

ATTACHMENT A

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Any communications, documents, correspondence, e-mails, calendar entries, or meeting notes relating to Tom McEnery, John McEnery, San Pedro Square Properties or their affiliated pminerships and entities, and the City of San or the City's Redevelopment Agency, regarding loans and grants associated with San Pedro Square. Any communications, documents, correspondence, e-mails, calendar entries, or meeting notes between the City of San Jose or the City's Redevelopment Agency and Frank Cucuzza, relating to property holdings at San Pedro Square. Any communications, documents, correspondence, e-mails, calendar entries, or meeting notes between the City of San Jose or the City's Redevelopment Agency, including between any "City Officials" listed for lobbying purposes on the City Clerk's website, and the owners of Taste Ultra Lounge, located at 87 N. San Pedro St., San Jose, CA. Any communications, documents, correspondence, e-mails, calendar entries, or meeting notes, between any City Official of the City of San Jose or the City's Redevelopment Agency, and Tom McEnery, and/or John McEnery IV, and/or Sarah Brouillette, and/or Barry Swenson Builders and/or John Snell, regarding Taste Ultra Lounge, located at 87 N. San Pedro St., San Jose, CA. Any communications, documents, correspondence, e-mails, calendar entries, or meeting notes regarding the "Urban Market" development proposal located at San Pedro Square between any City Official of the City of San Jose or the City's Redevelopment Agency, and Tom McEnery, and/or John McEnery IV, and/or Sarah Brouillette, and/or Barry Swenson and/or Urban Market LLC, or any oftheir affiliates. Any communications, documents, correspondence, e-mails, calendar entries, or meeting notes between Tom McEnery, John McEnery IV, and the City of San Jose or the City's Redevelopment Agency, regarding the Theatre on San Pedro Square. Any communications, documents, correspondence, e-mails, calendar entries, or meeting notes between Tom McEnery and/or John McEnery IV and any City Official of the City of San Jose, or the City's Redevelopment Agency, relating to the Redevelopment Agency's Request For Proposal concerning a ground floor theater as part of a residential high-rise on the former Fire Station No. I property near San Pedro. Any communications, documents, correspondence, e-mails, calendar entries, or meeting notes between any City Official of the City of San Jose, or the

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City's Redevelopment Agency, and the San Jose Sharks andlor Silicon Valley Sports & Entertainment andlor Tom McEnery relating to the granting of nearly $3.75 million to pay part of the cost of a new scoreboard and other equipment at HP Pavilion.

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Any communications, documents, correspondence, e-mails, calendar entries, or meeting notes between History San Jose and any City Officials of the City of San Jose, relating to the Peralta House and Fallon House. Any communications, documents, correspondence, memoranda, e-mails, calendar entries, or meeting notes relating to Tom McEnery, John McEnery IV, San Pedro Square Properties or their affiliated partnerships and entities, and the City of San or the City's Redevelopment Agency, regarding loans andlor grants associated with the Storm property located at or near 73-75 North San Pedro Street. Any and all credit rating reports, loan applications or loan agreements obtained by the City pertaining to Tom McEnery, John McEnery IV, andlor Urban Markets LLC. Any and all credit rating reports, loan applications or loan agreements obtained by the City pertaining to The Farmers Union. Any and all documents including bank statements, invoices, payment stubs, and other cOlTespondence reflecting the payment history on all loans granted to Tom McEnery, John McEnery IV, San Pedro Square Properties, Urban Markets LLC, andlor The Farmers Union or their affiliated partnerships and entities by the City 01' any of its agencies. Any and all requests by any City Official for an order to show cause hearing for anyone associated with Urban Markets LLC, including but not limited to Tom McEnery, John McEnery IV, Sarah Brouillette, Martin Menne and Barry Swenson. Any and all calendar entries, phone logs, emails, voice mails or meeting notes relating to Tom McEnery, John McEnery IV, San Pedro Square Properties 01' their affiliated partnerships and entities, and Chief of Police Rob Davis. Any and all calendar entries, phone logs, emails, voice mails or meeting notes relating to Tom McEnery, John McEnery IV, San Pedro Square Properties or their affiliated partnerships and entities, and Assistant Chief of Police Daniel Katz. Any and all complaints, claims or other reports filed against any City Official for failure to enforce ordinances with the San Jose Elections Commission.

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Any and all communications, documents, correspondence, e-mails, voicemails, text messages, calendar entries, and meeting notes, dated from January 1,2004 to the present, between Tom McEnery or John McEnery IV and the San Jose Police Department. Any and all communications, documents, correspondence, e-mails, voicemails, text messages, calendar entries, and meeting notes, dated from January 1,2006 to the present, between Tom McEnery, John McEnery IV, Urban Markets LLC, or any of their agents, officers, attorneys or employees, and the San Jose Police Department. Any and all voicemails, emails or text messages sent or received on private electronic devices used by Mayor Chuck Reed or members of the City Council, or their staff, regarding any matters concerning the City of San Jose, including any matters concerning Tom McEnery, John McEnery IV, Barry Swenson, Martin Menne, Sarah Brouillette, or anyone associated with Urban Markets LLC or San Pedro Square Properties. Any and all voicemails, emails or text messages sent or received on private electronic devices used by San Jose City Council Member Pierluigi Oliverio, or his staff, regarding any matters concerning the City of San Jose, including any matters concerning Tom McEnery, John McEnery IV, Barry Swenson, Martin Menne, Sarah Brouillette, or anyone associated with Urban Markets LLC or San Pedro Square Properties. Any and all voicemails, emails or text messages sent or received on private electronic devices used by San Jose City Council Member Sam Liccardo, or his staff, regarding any matters concerning the City of San Jose, including any matters concerning Tom McEnery, John McEnery IV, Barry Swenson, Martin Menne, Sarah Brouillette, or anyone associated with Urban Markets LLC or San Pedro Square Properties. Any and all voicemails, emails or text messages sent or received on private electronic devices used by Jessica Garcia-Kohl, regarding any matters concerning the City of San Jose, including any matters concerning Tom McEnery, John McEnery IV, Barry Swenson, Martin Menne, Sarah Brouillette, or anyone associated with Urban Markets LLC or San Pedro Square Properties. Any and all communications between Kenneth Machado, Jr., John McEnery, Tom McEnery, or any representative of Urban Markets, LLC, and the San Jose Elections Commission, or any member thereof. Any and all communications between Kenneth Machado, Jr., John McEnery, Tom McEnery or any representative of Urban Markets, LLC, and Rick Doyle, Lisa Herrick or any representative of the San Jose City Attorney's office.

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EXHIBIT B

CITYQF

SAN]OSE
CAPITAL OF SILICON VALLEY

A

COUNCIL AGENDA: 08-18-09 ITEM: 3.4

Memorandum
FROM: Mayor Chuck Reed DATE: August 17,2009

TO: CITY COUNCIL

SUBJECT: SUNSHINE REFORM TASK FORCE PHASE n RECOMMENDATIONS

Approved

en.:- ~ k~ <2.Q

Date

RECOMMENDATION Approve the Sunshine Refonn Task Force recommendations on Ethics and Conduct, Technology, Administration and Acconntability, and portions of SRTF recommendations on Public Records, as amended by the Rules and Open Govemment Committee as outlined in the staff memo dated July 30,2009; and 1. Approve the Rules and Open Govemment Connnittee's recommendation to limit the use of the balancing test to make it easier for the public to get records. 2. Approve the Rules and Open Government Committee's practice of considering release of recordings of 911 calls on as case-by-case basis using the balancing test instead of having a blanket ban on releases and direct the City Manager to establish a policy that the San Jose Police Department will consider releasing recordings of 911 calls on a case-bycase basis using the balancing test. 3. Approve the Rules and Open Government Committee's practice of considering disputes over Public Records Act requests in a streamlined process that is simple and quick and requires decisions to be made in a public session. 4. Approve the release of detailed budget information that is the fonndation of the aggregate data in the Proposed and Adopted Budgets and any other actual expenditure information without applying the balancing test. 5. Direct the City Manager to include program level information in the 2010-11 budget for General Fund funded programs that would provide additional budget information. 6. Refer to the Rules and Open Government Committee the question of how communications about city business made with personal email, text messages, cell phones, social networking websites and other new technologies should be dealt with as public records. 7. Direct staff to prepare for Council review an amendment to our Lobbyist disclosure ordinance that would require Councilmembers to verbally disclose, before a vote is taken, any cornmunications with lobbyists that occur during a Council meeting.

Sunshine Reform Task Force Phase II Recommendations August 17, 2009 Page 2 of3

BACKGROUND
The Rules and Open Govenunent Committee began its review of Sunshine Reform Task Force (SRTF) recommendations in June of2007. During this review, SRTF members provided additional input as did community members and stakeholder groups. The SRTF completed its work in two phases. In Phase 1,50 recommendations (92%) have already been adopted; (only four recommendations were revised and subsequently adopted.) Ofthe Phase II recommendations now being considered by the City Council, 42 (78%) are forwarded with a recommendation either to approve as recommended by the Task Force or approve with minor revisions, while 12 (22%) are not recommended by the Rules and Open Government Committee or recommended with major revisions. These Sunshine RefOlms are in addition to the thirty Reed Refonns, (four pending,) approved by the Council. Balancing Test Use ofthe balancing test has generated the most discussion and interest, because in some jurisdictions it has been used to deny the public access to infonnation. While most of these examples come from outside of San Jose, the SRTF recommended that the balancing test be eliminated totally. The Rules and Open Government Committee concluded that there were some situations in which the balancing test was necessaJ:y to protect the public interest, and so it should not be deleted altogether. For eXaJllple, designs of City infrastructme are a matter of public record. However, we would not want to release blueplints for the airport or our water treatment facilities to be posted on the web when they could be viewed by terrorists or people who want to hann others. Use of the balancing test allows for a public discussion of whether or not the public interest in withholding is greater than the public interest in disclosure. Rather than completely eliminate the balancing test, the Rules and Open Govenunent Committee worked with staff to bring fOlward language that narrowly construes the balancing test and limits its use. A San Jose Police Department policy that considered releasing recordings of911 calls on a caseby-case basis through use of the balancing test would allow for the public interest to remain the paraJllount concern of the City government. In a recent example, the public interest in disclosing the critical details of an emergency would have had to outweigh the public interest in withholding a child's pleas for help and the clies of a frantic victim from the media. Significant Public Records Act Requests San Jose's goal should be for public records disputes to be rare. Citizens should receive the infonnation they need quickly. The current Rules and Open Govenunent Committee appeals process has been simple and effective. Conducted in a public meeting, those who wish to challenge the initial denial of a public records act request no longer have to hire a lawyer and proceed in com"! as in the past.

Sunshine Reform Task Force Phase II Recommendations August 17, 2009 Page 3 of3

Budget and Other Financial Information
Since the adoption of the 2007 Mayor's March Budget Message, the City Council has sought to move towards a full disclosure budget process under which every program, service and corresponding budget are reviewed annually. The Council did not want to assume that the cost structure and service delivery systems from previous years would be continued into the next year automatically. Instead, to the extent possible, CUlTent service and service level enhancements should be considered and prioritized as part of the budget process. The goal was to help residents and the City Council prioritize which services to include in a spending plan. In moving towards a full disclosure budget process, we have: • Provided more infonnation about new initiatives and spending • Provided clear information on the purposes and costs of existing programs o Published clear information about revenues and the balance between revenues and expenditures • Provided information to put the budget in context • Created easier public access to budget information • Created more opportunities for input, review and setting pri0l1ties However, there are opportunities to continue this effort. Actual expenditure information and detailed budget information that is the foundation of the aggregate data in the Proposed and Adopted Budgets should not be withheld on the basis of the balancing test. The public has a fundamental right to Imow how its government spends, or plans to spend, its money. Furthermore, the Council and the public at large should ensure that its budget process is as transparent as possible. During last year's budget process, some Councilmembers felt that additional program level detail would be beneficial as the City confronted painful reductions. To answer that call, the City Manager should include program level information in the 2010-11 budget for General Fund funded programs that would provide additional budget information. With additional program level infOlmation, Councilmembers and the public will be able to have an accurate picture of the types of services being delivered by taxpayer dollars.

New Technologies
Records of city business created with personal equipment, such as personal email, text messages, cell phones, social networking websites, and other new technologies should be covered by the California Public Records Act. The question ofhow to make them available to the public needs some research and discussion. That work should be referred to the Rules and Open Government Committee. In addition, if lobbyists are-attempting to influence Councilmembers prior to a Council vote through the use of emails, texts, or another type of technological communication, those contacts should be reported from the dais by the Councilmember.


				
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