In updated court filings, Fullerton City attorneys have now significantly reduced the list of alleged secret city hall documents that city officials accused resident and blogger Joshua Ferguson of illegally downloading in a lawsuit filed against him and the blog earlier this year.
“I deal with a lot of cities, a lot of government agencies. I mean this is unique, to say the least,” said media attorney Kelly Aviles, who represents Ferguson.
In late October, city attorneys alleged Ferguson and other bloggers illegally downloaded 50 folders from Fullerton’s Dropbox account containing private employee information, including medical records and social security numbers.
But the list of files was more than cut in half to when Fullerton attorneys shortened the list to 19 files, according to documents filed by city attorneys to the Orange County Superior Court Nov. 19.
Kimberly Hall Barlow, Fullerton’s litigator in the case, said the original 50 files was an erroneous list.
“The list that was originally included was all 50 of the folders and files that they had downloaded [Dropbox] so there was an error, that was a full list. It was supposed to be a shorter list,” Barlow said. The order doesn’t apply to anything they got through a valid public records request … Our interest is not in anything they got in responsive records.”
Aviles, who is also Voice of OC’s chief litigator, was critical of Fullerton’s updated list and said the original 50 folders contained records meant for public disclosure.
“It’s a level of incompetence I have not seen before,” Aviles said. “In the case where you have a serious questionable legal basis, wouldn’t you want to have all your procedural ducks in a row?”
Ferguson initially sued the city for allegedly failing to provide police misconduct records as required under a new state law and then Fullerton sued him, seeking an injunction against the publication of secret city hall records about a week after his suit was served.
The 19 folders in question are part of an Oct. 25 temporary restraining order from Orange County Superior Court Judge Thomas Delaney that initially barred Ferguson and the blog from publishing and distributing the secret city hall documents.
The Fourth District Court of Appeal suspended the publication gag Nov. 7, but it doesn’t appear it will consider the rest of the restraining order, which includes a potential search of private computers by a court-appointed computer specialist.
The blog, Friends for Fullerton’s Future, caught the city’s attention in June when it began publishing some of the alleged secret documents in June, including 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. The city sent a cease and desist letter in June and the blog refused to comply with it.
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.
Barlow said the files Ferguson allegedly downloaded from the city’s Dropbox aren’t police misconduct records.
“It’s by no means a big pile of wrongful law enforcement records or whatever it is they’re looking for,” Barlow said. “So for example there are communications between the law firm and the city representatives concerning litigation matters, personnel matters, citizen requests that includes personal health information, also employee emails that contain medical information.”
Aviles and attorneys from the First Amendment Coalition and the Reporters’ Committee for Freedom of the Press have likened the publishing gag attempt to the Pentagon Papers.
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.
Katie Townsend, executive director for the Reporters’ Committee for Freedom of the Press, previously told Voice of OC she’s never seen a legal argument like the case Fullerton is making against Ferguson.
“It’s not an argument that we’ve seen before. It’s a novel argument — a novel reading of the [state and federal 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.”
“The entire theory of their case is deeply, deeply troubling,” Townsend said. “The idea the blog was hacking isn’t what happened, factually.”
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.”
But, Barlow said, the city’s case against Fullerton and the blog is different from the Pentagon Papers case.
“The Pentagon Papers was a whole different story, because the people who published it didn’t steal it and it was a public concern,” said Barlow, adding the records Ferguson allegedly has are private information and “not a public concern” like the Pentagon Papers.
Barlow said the city’s not overstepping the First Amendment.
“I’m a huge defender of the First Amendment. I wouldn’t be involved in this case if I thought we were crossing a line,” Barlow said. “I’m doing what I believe is a righteous thing in protecting people’s data.”
Gabe Rottman, director of technology and press freedom for the Reporter’s Committee for Freedom of the Press, previously said Fullerton’s court filings indicate the city gave Ferguson and the blog access to its Dropbox account.
“If I’m reading the city’s filings correctly, I don’t think that the Dropbox page was protected by a password,” Rottman said. “I think it could be accessed by anybody who knew where to look. If the city was commingling documents that weren’t reviewed by an attorney yet … and it was inviting people to download (from the Dropbox account), that wouldn’t be hacking.”
Aviles said she’s surprised the case hasn’t been thrown out for the changing exhibit list and the Supreme Court’s decision in the Pentagon Papers case.
“How do you not throw the whole thing out? Not only that, the City Council that’s standing behind this action? I can’t believe the residents aren’t up in arms,” Aviles said.
She also said Fullerton’s attorney fees are likely hundreds of thousands of dollars, because she’s already racked up about $100,000 in legal fees. Aviles said city legal bills are always higher than hers.
“If you’re not outraged about the First Amendment implication and the overreach of your government, you should be worried about the fiscal issues,” Aviles said.
Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio.