The City of Fullerton has backed away from a lawsuit against residents and local bloggers Joshua Ferguson and David Curlee for publishing police misconduct records, with the city now having to pay their legal fees and damages.
The blog Ferguson and Curlee write for, Friends for Fullerton’s Future, caught the city’s attention back in June 2019 when it began posting documents 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.
In late 2019, Fullerton city attorneys alleged Ferguson and Curlee hacked and stole documents from the city’s Dropbox account, a cloud-based file sharing and storage system.
The city now says it erroneously made those files public.
“Based on the City’s additional investigation and through discussions with Mr. Ferguson and Mr. Curlee, the City now understands that documents were not stolen or illegally taken from the shared file account as the City previously believed and asserted. Rather, the documents were made inadvertently available by the City’s response to [public records] requests,” reads the settlement.
According to the settlement, city staff gathered documents stemming from records requests and put them in the Dropbox for city attorney review.
“… believing these files and folders placed therein were secure and that access was restricted … due to errors by former employees of the City in configuring the account, the files and folders were in fact accessible and able to be downloaded by the public,” reads the settlement.
Click here to read the settlement
Kelly Aviles, attorney for Ferguson and Curlee, said the settlement shows the city knew it was wrong the whole time.
“They admitted that they were wrong, that my clients never did anything wrong,” Aviles said in a Thursday phone interview. “They didn’t commit any crime. But more importantly they admit exactly what happened, which is the city’s error. They put documents online without having proper access controls.”
Aviles is also Voice of OC’s chief public records litigator.
“It is outrageous that they tried to take their error and spin it so citizens and journalists are criminals just to cover their own ass,” she said.
The city also has to pay Curlee and Ferguson $120,000 in damages, split evenly between the two.
Ferguson said the city should’ve simply called him instead of pursuing a lawsuit.
“I wish it had never started. There was no reason the city didn’t call us in the beginning, instead of threatening us,” he said in a Friday phone interview. “When it comes to complete government screw ups, they just close ranks and go after the public any time they can.”
Ferguson said he and Curlee agreed to give back documents that weren’t news worthy, which could contain medical records, social security numbers and a host of other personal information.
Leading up to the settlement, two different Orange County Superior Court Judges — Thomas Delaney and James Crandall — twice blocked the blog from publishing secret city hall documents.
Yet the orders were shot down by the 4th District Court of Appeal.
Fullerton taxpayers also have to cover $230,000 in legal fees for Ferguson and Curlee.
Mayor Bruce Whitaker said the City Council voted 3-2 to settle the lawsuit at their meeting Tuesday, with Council Members Jesus Silva and Ahmad Zahra dissenting.
Whitaker, who was the only person to object to the lawsuit during the last iteration of the City Council before the November election, said he blames the majority for spending tax dollars on the issue.
“I do blame the four members of the prior council, of which two [Silva and Zahra] are still with us,” Whitaker said. “For basically wasting anywhere from a half million to three-quarters of a million dollars.”
But Zahra said he was in favor of a settlement early on in the lawsuit.
“I’ve actually been, from the beginning, a fan of settling this case,” Zahra said in a Friday phone interview.
He said he voted against the settlement Tuesday because he fears some of the language leaves the city open to a legal liability.
“Ultimately it came down to the language and I had some reservations in there,” Zahra said. “That worried me it could open up the city to more liability. I would have preferred a little bit more fine tuning of that. I hope this is behind us.”
Silva didn’t return phone calls seeking comment.
Silva told the Fullerton Observer that he voted against the settlement because he was concerned about spending tax dollars.
“We have to defend the City. We’re liable to the community. We have a fiduciary duty to constituents, and we didn’t hold up our end of the bargain,” he said.
Whitaker said he’s been told estimates of the city attorney’s legal fees are up to $250,000, if not more.
Ferguson said Silva’s position makes no sense.
“Jesus Silva told the Fullerton Observer that he voted against our settlement because he had a fiduciary responsibility to the residents of Fullerton. The same Jesus Silva that voted to sue us. Are you kidding me?” he said.
Whitaker also criticized some of the legal advice from city attorney Dick Jones, which he said ties into the majority’s direction.
“One thing that’s important to understand sometimes is that city attorneys serve a majority of council … what I used to do, even as an activist, was blame city attorneys for not giving their clear legal opinion and basically echoing what a majority of the legislative body wanted them to say,” Whitaker said.
He added, “I’m not trying to make excuses for anybody, but I find that this is pretty commonplace. City attorneys wind up not sticking around every long if they don’t back the majority.”
Ferguson said Jones, who works for Jones and Mayer law firm, had an incentive to keep the lawsuit going.
“Because they’re also the litigator, if the city attorney screws up, they get paid more,” Ferguson said. “The longer they take, the more money we pay them. They have a perverse incentive. They don’t have an incentive to do the right thing, to minimize damage.”
Whitaker said the city should’ve known better than to go after Ferguson and Curlee.
“The four members who voted to pursue this litigation — it was very ill-advised. Because the record on prior restraint [stopping a newspaper from publishing] against the media is not a very good record. You don’t have to be an attorney to understand that.”
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.
The United States Supreme Court ultimately 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 a raw, previously undisclosed 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.
Ferguson criticized Silva and Zahra for wanting to continue the lawsuit against him.
“Jesus Silva and Ahmad Zahra, to this day, will not take responsibility for the actions of the city. Won’t apologize for what they dragged us through, for what they dragged the taxpayers through. They just want to blame us for the incompetence of their bureaucrats.”
Spencer Custodio is a Voice of OC staff reporter. You can reach him at firstname.lastname@example.org. Follow him on Twitter @SpencerCustodio