TO: RULES AND OPEN
GOVERNMENT
COMMITTEE
FROM: Councilmember Ortiz
Councilmember Campos
Councilmember Cohen
Councilmember Candelas
Councilmember Casey
SUBJECT: SEE BELOW DATE: 09/03/2026
Approved Date:09/03/2026
SUBJECT: Council Transparency and Private Non-Disclosure Agreements
RECOMMENDATION
Direct the City Manager’s Office, in coordination with the City Attorney’s Office and City Clerk, to evaluate and return to the City Council with policy options that would:
1. Prohibit members of the San José City Council from entering into nondisclosure or confidentiality agreements (NDAs) concerning projects, contracts, developments, or other matters subject to City approval, funding, regulation, oversight, or legislative action, including data centers and other large energy-use projects and related infrastructure and agreements.
2. Prohibit persons or entities seeking City action or approvals from conditioning access to project-related information upon a Councilmember signing a nondisclosure or confidentiality agreement.
3. Establish an appropriate City process to review confidential, proprietary, trade secret, or commercially sensitive information from persons or entities seeking City action or approvals without requiring individual Councilmembers to enter into NDAs.
BACKGROUND
Recently, state legislation was signed by Governor Gavin Newsom, which prohibits state leadership from signing NDAs when formulating legislation or allocating public funds. By legally binding signers to confidentiality, NDAs improperly restrict elected representatives from informing constituents about decisions made under their official RULES COMMITTEE: 9/9/26
ITEM: C.1
RULES AND OPEN GOVERNMENT COMMITTEE
September 9th, 2026
Subject: Council Transparency and Private Non-Disclosure Agreements
authority. To ensure local government transparency reflects state standards, the City should adopt similar policies.
Members of the San José City Council are entrusted with making decisions that affect our neighborhoods, public resources, infrastructure, economic development, and the future of our city. In carrying out these responsibilities, Councilmembers routinely engage with developers, businesses, project applicants, community organizations, labor organizations, investors, and other stakeholders on matters that may require City action.
Transparency is fundamental to maintaining public trust. A private nondisclosure or confidentiality agreement between a Councilmember and an entity seeking governmental action can create a conflict between the obligations of that private agreement and the elected official’s responsibility to communicate with constituents. A private entity seeking City approval should not be able to determine, through a privately negotiated agreement, what an elected representative may discuss with the residents they were elected to serve.
The City of San José has confronted concerns regarding nondisclosure agreements in the past. During negotiations involving Google and a previous City Council, the use of NDAs became a significant public perception issue and raised concerns about transparency surrounding matters of substantial public interest. While there is no assertion that similar circumstances exist today, this policy provides an opportunity for the current Council to affirm its commitment to open government, strengthen public trust, and make clear that residents should come first when decisions involving the future of their city are being considered.
This policy would therefore distinguish between confidentiality required or authorized by law and confidentiality imposed through a private contractual agreement. It is not intended to interfere with attorney-client privilege, lawful closed sessions, litigation, labor or real property negotiations, personnel matters, trade secret protections, or other confidentiality protected by law. Rather, its purpose is to ensure that private parties cannot unnecessarily restrict elected representatives from communicating with the public about matters over which they exercise governmental authority.
The signers of this memorandum have not had, and will not have, any private conversation with any other member of the City Council, or that member’s staff, concerning any action discussed in the memorandum, and that each signer’s staff members have not had, and have been instructed not to have, any such conversation with any other member of the City Council or that member's staff.