Local blog Friends for Fullerton’s Future and contributor Joshua Ferguson have been ordered to stop publishing confidential documents they may have after an Orange County Superior court judge partially granted Fullerton’s request for a temporary restraining order on Friday.
City officials allege Ferguson and other blog contributors illegally accessed Fullerton’s Dropbox account — a cloud-based storage service — and downloaded draft agreements and other confidential documents. Earlier this month, Ferguson sued the city for allegedly failing to produce police misconduct records under the new records disclosure law, SB 1421.
“I am concerned about how these documents were taken … and what they are,” Judge Thomas Delaney said during Friday’s court hearing.
Although Fullerton city attorneys wanted Delaney to appoint a “third party forensic expert” to search Ferguson and the blog’s computers, the judge denied that part of the temporary restraining order. Ferguson and the blog are also prohibited from deleting the documents or passing them to anyone else.
“I am concerned with the First Amendment issues,” Delaney said, before issuing his order Friday afternoon.
A Nov. 21 preliminary injunction hearing has been scheduled in the case.
At the beginning of Friday’s hearing, attorney Kimberly Hall Barlow, who represents Fullerton, said, “This case has nothing to do with the First Amendment. They stole documents from the city.”
“He stole these records, it’s right there,” Barlow told Delaney, pointing to a declaration from a forensic computer analyst hired by the city.
The analyst said Ferguson and others with the blog accessed Fullerton’s Dropbox, according to his court declaration.
“It goes on and on and on,” Barlow said.
There would be harm to employees and others if the judge didn’t grant Fullerton’s full request, according the city’s court filing.
“The City will continue to be subjected to great and immediate irreparable harm to the privacy and reputation of its employees and officials, and the invasion of its attorney/client relationships,” reads the request.
But media attorney Kelly Aviles, who represents Ferguson, argued Fullerton’s proposed temporary restraining order (TRO) is an act of prior restraint and a violation of the First Amendment.
“Case law says the government cannot prohibit the publication of information,” argued Aviles. “There has never been a prior restraint that’s ever been upheld for any reason.”
Aviles also cited the United States Supreme Court decision on the Pentagon Papers in 1971, when President Richard Nixon tried to block the New York Times and other newspapers from publishing a classified study about the Vietnam War and return the documents. The country’s highest court sided with the Times and allowed the newspaper to keep publishing the papers.
“As the Supreme Court repeatedly has made clear, courts may not enjoin or punish the publication of public records, even when those records reveal allegedly confidential information,” reads the TRO opposition filing by Aviles.
Aviles said the city provided Ferguson with a link to the Dropbox account during a records request and was provided a password and called Fullerton’s hacking accusation against Ferguson “such a questionable claim.”
But Barlow called the claim “false’ and said Ferguson wasn’t provided a password.
Assistant City Clerk Mea Klein’s declaration shows a password was provided to resident David Curlee, who is also named in the lawsuit against the blog, to access a completed records request.
Aviles successfully argued against the City of Fullerton request to have the court appoint a forensic investigator to look through Ferguson and the blog’s computers citing California’s Shield Law, which protects journalists from search warrants aiming to find sources or documents.
“Shield Law does not allow a third party to come in and review a newspaper’s material,” Aviles said.
But Barlow argued the TRO request was based on the alleged hacking by Ferguson and the blog and didn’t dispute the Shield Law’s applicability to a blog. A 2006 state appeals court case extended shield protection to bloggers.
“This is not about them being a newspaper, this is about theft. This is about stealing,” Barlow said.
She also said while the First Amendment has a high priority, “the attorney-client privilege has an even higher priority in our jurisprudence,” because it could affect legislation and court cases.
“They now have possession of confidential and privileged information,” Barlow said. “I can’t protect the privacy of my police officers and other employees … the possible harm is to thousands of people in thousands of ways.”
“I do see substantial harm, particularly with the attorney-client privilege,” said Delaney, before issuing his order.
The blog published a draft agreement June 11 between the city and former Lt. Kathryn Hamel to halt at least one internal affairs investigation if she resigned from the department, in an effort to shield the records from a new state disclosure law that allows the public to see select police misconduct records.
“The City will revise its Notice of Intent to Discipline Hamel to remove allegations relating to dishonesty, deceit, untruthfulness, false or misleading statements, ethics or maliciousness. The Interim Police Chief will place a notice in the file indicating that, pursuant to settlement, all charges against Hamel … were never resolved or proven because there was no Skelly hearing or opportunity for appeal and, accordingly, are not sustained,” reads the draft agreement, which is also attached to Ferguson’s record lawsuit.
“On or about June 13, 2019, the City of Fullerton became aware that certain of its privileged and confidential information had been published without its permission on the Blog,” reads Fullerton’s lawsuit against Ferguson and the blog.
City Attorney Greg Palmer sent a cease and desist letter to the blog the same day.
Meanwhile, Aviles filed an anti-Strategic Lawsuit Against Public Participation (SLAPP) motion against The City of Fullerton, which will be heard on the same day as the Nov. 21 preliminary injunction hearing. A SLAPP is a tactic used against critics that a jurisdiction is trying to silence, usually in the form of drawn-out litigation.
Aviles called Fullerton’s lawsuit against Ferguson and the blog a SLAPP.
“This is also a SLAPP,” she said. “This is clearly protected activity.”
She told Delaney that Fullerton attorneys are trying to paint Ferguson and the blog as criminals to avoid an anti-SLAPP motion.
“It’s kind of laughable they can come into court and say, “Oh, you opened a file with your name on it. Now you’re a criminal,” Aviles said.
But Barlow said, “There is no anti-SLAPP defense for hackers.”
Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio.