Questions are mounting about the City of Fullerton’s lawsuit against resident and blogger Joshua Ferguson for publishing and allegedly stealing secret city hall documents after an expert, testifying on Ferguson’s behalf, said the city misrepresented evidence to the court.
A court filing last week by University of Illinois computer science professor, John Bambenek, alleges the city’s initial filings against Ferguson and the blog, Friends for Fullerton’s Future, are inconsistent with Fullerton’s later court filings.
“The court relied on the City’s ‘expert’ testimony when it granted the Temporary Restraining Order, but it has since been shown, by the city’s own declarations, the underlying facts are different than the City first suggested,” read’s Bambenek’s declaration.
Bambanek points to the exclusion of U.S. internet addresses and the “enrichment” of Dropbox logs, which is the cloud-based storage and sharing service Fullerton used to store records Ferguson and the blog allegedly stole.
He also said the city’s computer expert, Matthew Strebe, pointed to software designed to hide internet addresses from people, commonly referred to as VPNs and TORs. Strebe attributed the foreign addresses to Ferguson.
“Yet, the City has provided no direct evidence to substantiate this claim and is virtually impossible because the users were, by their very nature, anonymous. Given that the manner in which the City intentionally configured its Dropbox account, removing the normal password restrictions, the anonymous users could be anyone,” reads Bambenek’s declaration.
Fullerton officials rejected Bambenek’s testimony in its “The lack of other information from the logs does not affect the value of the evidence that is presented, particularly since the pattern of Defendants to use foreign IP addresses is established by the testimony,” reads Fullerton’s objection.
The city’s objection also alleges Ferguson illegally downloaded while logged into his work and private email accounts.
But Bambenek, in his declaration, said Strebe “enriched” data logs, which show that information.
“‘A true and correct’ copy cannot include this such ‘enrichments.’ Thus, Strebe’s statements in this regard, whether intentional or not, were clearly false,” reads Bambenek’s declaration. “In so doing, this expert has deceived the Court, which raises serious concerns about further reliance on any of Mr. Strebe’s claims.”
When Fullerton city attorneys first filed litigation against Ferguson in late October, they requested an immediate restraining order to block the blog from publishing any more documents.
The move gave Ferguson and the blog little time to respond to the scores of initial court filings made by Fullerton.
Until Feb. 6, when Crandall set the SLAPP hearing, which will be heard alongside Fullerton’s publication gag request March 12.
Now, Fullerton attorneys must prove Ferguson and the blog stole secret city hall documents for the lawsuit to continue. The next hearing is March 12.
Ferguson’s attorney, Kelly Aviles, made an anti-Strategic Lawsuit Against Public Participation (SLAPP) motion Oct. 25, when OC Superior Court Judge Thomas Delaney barred Ferguson, and the blog, from publishing the secret city hall documents. SLAPP lawsuits are usually used to silence critics through drawn-out litigation, which can bury people under legal fees.
Aviles is also Voice of OC’s chief public records litigator.
The Fourth District Court of Appeal blocked Delaney’s publishing gag Nov. 7 and movement on the case was mostly stalled until OC Superior Court Judge James Crandall told Fullerton officials Feb. 6 that they have to prove Ferguson and the blog stole documents at this Thursday’s court hearing.
Despite the appellate court nixing the publication gag, Fullerton officials are still looking to block the publication of secret city hall documents, according to city court filings this week. City officials also want court-appointed forensic computer investigators to search Ferguson and the blog’s computers.
But the publishing gag Fullerton officials are seeking hinges on if the city attorneys can prove Ferguson stole the documents. If not, the case is in jeopardy.
At the Feb. 6 hearing, city attorney Kim Barlow told Crandall the fact the blog published the documents is proof of theft.
“I’m confident the court will deny the SLAPP,” Barlow said in court. “There’s no court that has held that stealing documents is protected … the publication (of the documents) is proof of the stealing.”
But Crandall’s tentative ruling on the anti-SLAPP motion, which he granted, says otherwise.
“News reporting and newsgathering constitute such protected conduct, even where the plaintiff (Fullerton) contends that the conduct used to gather information was unlawful or illegal,” reads Crandall’s tentative ruling. “The defendants (Ferguson and the blog) here do not concede that their activity was illegal, and the evidence has not been properly presented to the court. As a result, the burden shifts to plaintiff (Fullerton) to show a probability of prevailing on its claims.”
In court, Crandall said, “My tentative is illustrative of my thought process.”
In Ferguson and the blog’s reply last week to the city’s allegations, they said the city files more court documents when questions surface about the validity of Fullerton’s claims.
“In fact, every time Defendants call out the gaping holes in the City’s argument, the City files another set of declarations, slightly changing its story,” reads the response.
The reply also references Barlow’s theft claim.
“There could be a multitude of sources for the documents published on the blog, none of which have been ruled out by the City. Numerous people within the City and the City Attorney’s office have access to the records and any one of them could have provided the documents to the blog,” states the reply.
The blog, Ferguson, and resident David Curlee, who also has contributed to the blog and is named in the lawsuit, first caught the city’s attention last June when thee blog began posting documents last June from an internal police department investigation detailing how former City Manager Joe Felz got a ride home from Fullerton police officers after drinking and wrecking his car election night 2016.
The investigation included statements from officers who were at the scene, indicating former Sgt. Roger Jeffery Corbett falsified the police report and purposely blew the field investigation in the Felz case.
Corbett was charged for falsifying a police report by the District Attorney in September 2018 and is awaiting a June jury trial over the felony charge.
Felz retired December 2016, a month after the crash, and was charged with driving under the influence in early 2017. But that charge was lowered and he pleaded guilty to one count of reckless driving December 2017.
The blog also detailed a potential agreement between Fullerton and former Lt. Kathryn Hamel in an effort to hide any potential misconduct records from public release under the police disclosure law — SB 1421 — that kicked in at the beginning of last year. The agreement was labeled as a draft, so it’s unknown if any separation agreement was reached.
Hamel allegedly proceeded with a senior fraud and abuse case against Laguna Beach police officer Rock Wagner, which led to his arrest in late 2017, along with his sister and her boyfriend. All three were booked in Fullerton jail, but the OC District Attorney’s office and the Laguna Beach Police Department dropped the case because there was no evidence. Fullerton police led the efforts because the alleged fraud was claimed to have happened in Fullerton.
The failed investigation was detailed in a KCET documentary about the statewide fight for police misconduct records, which includes a portion of former county prosecutor Marc Labreche’s video deposition explaining why Hamel pushed for the elder abuse and fraud charges on Wagner.
“She told me she wanted to get this case cleared. Because, obviously, if an arrest was made and charges were filed, this was going to be high profile,” Labreche said. “She wanted to have that — she hoped that that might help get the promotion.”
Wagner and his family are suing Fullerton and the city’s police department for the bogus charges and arrests.
The lawsuit against Ferguson has drawn comparisons to the infamous Pentagon Papers case, as noted by observers and First Amendment advocacy groups like the First Amendment Coalition and Reporters’ Committee for Freedom of the Press.
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 detailed 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 troops 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.
Correction: An earlier version of this story said OC Superior Court Judge James Crandall granted the SLAPP motion Feb. 6. He set a hearing on the motion at that court hearing. The motion will be heard March 12.
Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio