The Fourth District Court of Appeals has temporarily blocked an OC Superior Court’s publishing gag order, which barred Fullerton resident Joshua Ferguson, and the blog he writes for, from publishing secret Fullerton city hall documents.
Orange County Superior Court Judge Thomas Delaney issued an Oct. 25 order barring the blog from publication.
The order, which was sought by Fullerton’s City Council and city attorneys, raises critical First Amendment concerns, which spurred state and national free speech advocacy groups to wade into the fight.
That means the appeals court is “taking the First Amendment arguments very seriously, which is very good,” said Katie Townsend, legal director for the Reporters’ Committee for Freedom of the Press, a First Amendment advocacy group
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The Reporters’ Committee filed supporting court documents supporting Ferguson’s appeal Nov. 5 and the appeals court blocked the OC Superior Court order two days later while it considers the case.
Townsend said Delaney’s Oct. 25 order barring publication, known as prior restraint, is nearly always found unconstitutional by courts.
“In almost every situation it is just clearly unconstitutional,” she said. “The entire theory of their case is deeply, deeply troubling.”
The lawsuit comes within a week of Ferguson suing the city for allegedly failing to provide police misconduct records under the new statewide police records disclosure law, SB 1421. City attorneys maintain Ferguson and the blog broke federal and state computer privacy laws when they accessed the Dropbox account, a cloud-based storage service.
The blog caught the city’s attention in June when it began publishing some of the alleged secret documents in June, including details of a draft agreement between a former police officer and the city to shield potential misconduct records from disclosure law, along with an investigation detailing how former City Manager Joe Felz got a ride home from police after drinking and driving and crashing his car in 2016.
A similar statewide battle over public access to police misconduct records also was thrust back into the statewide spotlight over the past weekend when a coalition of news organizations across California newspapers published a six-month investigation into police misconduct records.
Reporters in the Investigative Reporting Program at UC Berkeley got a list of 630 criminal police officers throughout the state as part of a records request earlier this year.
That list wasn’t supposed to be public.
The California Attorney General’s office, headed by Xavier Becerra, accidentally released the list 630 criminal police officers to reporters earlier this year, later saying it’s a crime to have the list. Becerra even threatened legal action against news outlets for possessing the list.
Meanwhile, there are questions in Fullerton about how the City Council first authorized the lawsuit against Ferguson.
At the Nov. 5 meeting, City Attorney Dick Jones said the councilmembers voted unanimously to file the lawsuit against Ferguson and the blog.
“In an effort to clarify any Brown Act violations, the fact that City Council on Sept. 17, 2019, met on a motion made by Mayor (Jesus) Silva and seconded Mr. (Ahmad) Zahra, on a 5-0 vote, the City Council approved the filing of a writ to seek a temporary restraining order against the main defendants,” Jones said.
But, that unanimous vote is wrong, according to Councilman Bruce Whitaker
“When they say I voted to approve this lawsuit, I say that’s not true,” Whitaker said.
In fact, Whitaker was the only dissenting vote when the Council majority doubled-down on the lawsuit during the Nov. 5 closed session portion of the meeting.
Whitaker said the city’s approach to the issue is “bad policy.”
Although Whitaker said he couldn’t speak to the legal advice given by Jones in the closed session meetings, he did say the argument was framed as a legal responsibility for overseeing city employees.
“We were given direction in terms of what our responsibility would be as representing the employees, is probably all I can say on it right now,” he said. “Again I don’t understand why the unanimous (vote) is so important. I disputed that openly … I was able to make it clear it was a 4–1 vote (from the Nov. 5 meeting). So I’m troubled somehow that correction hasn’t been made from September.”
Questions have also been raised about the city attorneys’ claim that Ferguson hacked Fullerton’s Dropbox account.
In the city’s court filings, assistant City Clerk Mea Klein’s declaration states Curlee was given access to the Dropbox account, stemming from a public records request.
“The entire theory of their case is deeply, deeply troubling,” said Townsend of the Reporters’ Committee for Freedom of the Press. “The idea the blog was hacking isn’t what happened, factually.”
Delaney ordered the publication gag Oct. 25, after deputy city attorney Kimberly Hall Barlow told Delaney the blog and Ferguson obtained records containing medical information and social security numbers.
Media attorney Kelly Aviles, who represents Ferguson and the blog, said the city potentially opened itself up to legal liabilities when it admitted it stored sensitive data on Dropbox in the court filings.
Aviles is also Voice of OC’s chief litigator.
“I understand completely the problem the city is facing that they (Fullerton) inadvertently disclosed private information. But the solution is not to violate people’s rights. That only created more liability for the city,” Aviles said.
She also said the Fullerton’s information technology staff should have done a better job securing the alleged confidential information.
“The city has IT people that are well compensated, I don’t know how this ever could have happened in the first place. The default restrictions from Dropbox would not allow this. You would have had to affirmatively configure your account in such a way to make this possible. So, it’s not like it was necessarily inadvertent,” Aviles said.
Delaney’s order has been criticized by state and national First Amendment advocacy groups, and prompted the Reporters’ Committee for Freedom of the Press to file support documents on Ferguson’s behalf in his appeal of the gag order.
Townsend said she hasn’t seen Fullerton’s legal approach before.
“It’s not an argument that we’ve seen before. It’s a novel argument — a novel reading of the [computer laws],” Townsend said. “The idea that journalists or bloggers are going to be prosecuted for ‘hacking’ for basically accessing or looking at folders in a Dropbox folder they were given access to is bad.”
Councilwoman Jan Flory said while she respects the First Amendment, the privacy of city employees is also at stake. Like Whitaker, she said she couldn’t speak about the legal advice given to the Council during closed session.
“I think that First Amendment rights trump everything else, but I believe that Kim Barlow has done a good job in that the city also wants to protect Mr. Ferguson’s First Amendment rights,” said Flory in a Nov. 8 phone interview.
She said the First Amendment isn’t the core issue.
“That’s not what’s at issue here. What’s at issue is he (Ferguson) obtained records that are private,” Flory said. “Or have some implications concerning the confidentiality of our city employees as well as members of the public.”
Flory also expected the publication gag order to get blocked, at least temporarily, she said.
“Was I shocked by it? No, not at all,” Flory said.
Apparently the City Council hasn’t been fully briefed on what documents Ferguson may have.
“None of the Council has been briefed exactly on what [Ferguson] might have obtained.” Flory said.
Aviles, Townsend and the Bay Area-based First Amendment Coalition likened Ferguson’s legal battle to the Pentagon Papers.
Townsend said Delaney’s publication gag order is illegal.
“That’s a prior restraint on free speech and even in the most extreme circumstances involving national security, like in the Pentagon Papers, the court ruled as unconstitutional,” Townsend said.
The Pentagon Papers case started when President Richard Nixon tried to block the New York Times and other newspapers from publishing a classified study about the Vietnam War and the United States Supreme Court sided with the newspapers in 1971 and allowed publishing the study.
The 7,000-page study was leaked to the New York Times, the Washington Post and other newspapers earlier that year by Daniel Ellsberg, a military analyst for the RAND Corporation. It showed the history of U.S. involvement in Vietnam starting in World War II until 1968, when there were over half a million troops in Vietnam. It was also the deadliest year during the war that saw nearly 17,000 servicemen killed.
“The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be,” wrote Justice William Douglas in his opinion on the Pentagon Papers case.
Douglas sided with the newspapers.
David Snyder, executive director for the First Amendment Coalition, previously told Voice of OC that the United States Supreme Court has never upheld a judge’s decision to block the publishing of documents.
“The colonists were familiar with licensing of printing presses. The crown had the ability to license printers … that meant if you pissed off the king or the queen, they would revoke your license and you can’t publish,” Snyder said. “One of the purposes of the First Amendment was to get the government out of the business of deciding who can or can’t publish.”
The blog also 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 whole thing is seriously ironic when you go and call the people that exposed secrecy and corruption — call them the criminals and try to avoid scrutiny of your own actions,” Aviles said.
Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio.