Local News

City Council Votes to Settle Lawsuit Against Fullerton’s Future Blog

The city of Fullerton has authorized a settlement offer in its civil lawsuit against the Friends for Fullerton’s Future Blog (FFFF) and two of its bloggers, Joshua Ferguson and David Curlee. The settlement, approved by the Fullerton City Council (in a 3-2 vote) during a Special Closed Session meeting held on the afternoon of Wednesday, May 12, requires the return of confidential City documents in the possession of FFFF bloggers but also has the City retracting its claim that the bloggers acted illegally in accessing the documents from the City’s Dropbox account. A statement, part of the full settlement agreement made available by the City immediately following the May 12 meeting, appears below.

“We have dismissed the lawsuit the City Filed against Joshua Ferguson, David Curlee, and Friends for Fullerton’s Future.

Initially, City staff were placing folders and files on CityofFullerton.com/outbox, a shortcut to a shared file account, because they believed the folders were secure and with restricted access. However, due to errors by former employees of the City in configuring the account and lax password controls, some of the files and folders were, in fact, accessible and able to be downloaded and/or accessed without circumventing access controls.

Based on the City’s additional investigation and through discussions with Mr. Ferguson and Mr. Curlee, the City now agrees that documents were not stolen or taken illegally from the shared file account as the City previously believed and asserted. The City retracts any and all assertions that Friends for Fullerton’s Future, Mr. Ferguson and/or Mr. Curlee acted illegally in accessing the documents.

The City has worked to protect the confidentiality of non-public documents while assuring robust public access to public records. While our attempts to secure the documents after their unintentional release was well-meaning, it had consequences for Mr. Curlee and Mr. Ferguson that we did not intend. The City regrets this misunderstanding.”

The City’s statement contained in a print copy of the settlement agreement provided by Fullerton’s City Clerk.

Fullerton initiated the civil suit in 2019 in response to the blog’s publishing confidential City personnel records revealing questionable conduct by City staff. The City first issued a “Cease and Desist” letter, but when the bloggers did not comply, the City eventually sued for the return of the documents and obtained a restraining order against publishing any more files they claimed had been downloaded by the bloggers without permission. The restraining order was quickly overturned, but the City continued to pursue the civil case.

The May 12 settlement requires the city of Fullerton to pay the Law Firm of Kelly Aviles $230,000 for legal fees incurred for representing FFFF and its bloggers in the case. The City will also pay the named bloggers, Joshua Ferguson and David Curlee, $60,000 each.

In return, the FFFF bloggers must provide the City Attorney with the files in question in any formats in which they possess them, use a systems cleaning software to delete or render unreadable the files in their possession, and delete the files from virtual storage or render them inaccessible. The latter two actions must be done in the presence of a specified mediator. Prior to taking these actions, the bloggers cannot make any copies of the files or allow them to be transferred to anyone else.

Prior to publishing the confidential files, FFFF bloggers had made dozens of public records requests of the City, which had allegedly given them access to more files than those requested by not requiring unique passwords for all files in Dropbox folders to which the bloggers were directed. The defendants maintained throughout the case that the City had no proof that it was FFFF’s bloggers who had directly accessed the confidential files. The bloggers were never charged with any criminal offenses by the District Attorney.

The City has since added more robust security to its online file system under the direction of Fullerton Police Chief Robert Dunn. Earlier this year, the City debuted a new web portal specifically for public records requests, including police reports.

Significantly, the deletion and/or return of files does not apply to any already published by the blog, which included documents showing Fullerton police arranging the resignation of a lieutenant who was being investigated for wrongdoing in such a way that the agreement would not be subject to a then recent law requiring the release of police misconduct records to the public.

The FFFF defense claimed that the blog’s publication of confidential City files was in the public interest and that the restraining order initially obtained by the City constituted prior restraint of press freedom. The case was seen to have serious implications for media outlets in possession of confidential files authorities did not want to have published. In the interest of free speech, courts have generally found in favor of the right of newspapers and other media to publish information not authorized to be in their possession, a critical element of the Constitution’s First Amendment guarantee of a free press.

The American Civil Liberties Union (ACLU), Reporter’s Committee for Freedom of the Press, and the Electronic Frontier Foundation (EFF) all filed amicus briefs in support of the bloggers, calling out the City for citing anti-computer crime laws in an unprecedented way against the press.

Following the City Council vote to settle the case, attorney Kimberly Hall Barlow, who handled the City’s case on behalf of Fullerton’s legal firm Jones & Mayer, commented only that she was glad the City was getting its documents back. Barlow had argued in court that the City’s interest was not in restraining freedom of the press, but rather to secure possession of the virtual documents obtained from its Dropbox.

City council members Jesus Silva and Ahmad Zahra voted against the decision to settle the suit, while Mayor Bruce Whitaker, Mayor Pro Tem Nick Dunlap, and Councilmember Fred Jung voted for the settlement.

Following the Council’s settlement meeting, Councilmember Jesus Silva told The Observer that he voted against the settlement agreement because he didn’t support the City’s statement exonerating the bloggers of wrongdoing. “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,” Silva said.

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31 replies »

  1. Jesus Silva found the one, single, solitary issue where he cares about the City’s “fiduciary responsibility”. Meanwhile he votes to keep paying Jones & Mayer who got the City into this and countless other fiduciary messes.

    What a disingenuous hack.

  2. “I consider the evidence that Ferguson and his associates were attempting to access City files while attempting to hide their tracks incontrovertible and damning. It would be incomprehensibly difficult to fake or otherwise fabricate the connections logged by the City’s Dropbox account in such a way that would associate Mr. Ferguson so clearly with this **illegal activity.**”

    Published by the Fullerton Observer. My emphasis on where you recklessly called these guys criminals.

    Y’all owe these guys a big fat apology. Actively soliciting a statement like this that purposely and shamefully gets the facts wrong to defame two fellow journalists is beyond the pale.

    Glad to see the City acknowledge they screwed up, nothing was done illegally, and that this has been a giant witch hunt from the beginning. Half a million dollars later, of course.

    I’d love to see the security experts who were paid, or had some other incentive like the Observer’s expert, to fabricate a lie that files were stolen pay their fair share of the Fullerton taxpayer’s bill. I won’t hold my breath waiting for this paper to do the right thing.

    • Ryan, notice that it was “former employees” who made mistakes? Jesus Christ will anybody over there take responsibility for anything?

  3. The Observer articles on this case faulted the city employee for giving FFFF access to the entire dropbox which contained confidential files. The Observer hired a computer security expert for an opinion on whether the city’s claim that the files taken could be traced back to the bloggers’ account was accurate or not. The expert agreed with the city expert that the download could be traced back to a computer at the workplace of one of the bloggers. It was the expert’s opinion that there was an attempt to cover up the access by using a program that hides the location identity of the computer downloading files if used properly – which he said, in this case was not was not used properly. At the time this story came out the Observer blamed the city for sloppy handling of confidential files one of which had the bloggers name on it. Who wouldn’t open a file with your name on it? In addition, the Observer was against the city wasting money filing a lawsuit that was sure to lose. The paper never called anyone involved in this case a criminal. I was the editor at the time this story came out. I have since retired and sold the paper to a new group of volunteers.

    • Your expert said the activity was illegal. I literally just posted it for you.

      You printed it, Sharon. Not exactly sure why you’re claiming you didn’t do what’s in black and white.

      The expert you hired called them criminals. You published it. You are culpable for it. Stop saying you’re not.

      • The sad world of the Fullerton Observer. Ralph Kennedy and Jack Harlow used to do the exact same thing. As the twig is bent, so grows the tree.

      • Reread the full article which is posted above. The opinion printed was that of the expert not the Observer.

      • Re-read my comment.

        Claiming that you don’t own a statement of fact from A PERSON YOU HIRED is not only disingenuous, it’s repugnant. It’s your freaking expert and your paper. No one made you do it.

        I’ll try it a different way. You did a bad thing, Sharon. A very bad thing.

  4. Let me get this straight

    Both the city and the Observer hired so-called experts the city is now admitting were full of crap. Do I have that right?

    Sharon, how much did you pay your “expert” for his magic 8 ball analysis?

  5. This was the lawsuit that should have never happened. Another reason the city manager should have been fired. This was all about hubris. The city was at fault here for not putting the right policy, procedures and security in process. Wha a waste of money and time!! No wonder we can’t get our streets fixed.

  6. Holy Cow! $120,000 for compensatory damages, $230,000 for the FFFF lawyer, and who knows how many hundreds of thousands of dollars for Jones & Meyer to pursue this. And Kimberly Barlow is happy the City “got its documents back”?

    And Silva is squawking about fiduciary responsibility? Very strange.

  7. The city says, “Based on the City’s additional investigation and through discussions with Mr. Ferguson and Mr. Curlee, the City now agrees that documents were not stolen or taken illegally from the shared file account as the City previously believed and asserted.”

    Uh, so then, why didn’t the city do a proper investigation before jumping to the conclusion that the documents were stolen and what kind of bad advice did the council get from the city attorney to cause this grave error?

    As residents of Fullerton, who shall we hold responsible for this mistake?

    Answer is, the City Attorney and the council members at that time who failed to use good judgment and accepted the false assumptions of the City Attorney.

      • Dear Jane, the Fullerton Observer holds itself out as a newspaper which implies it does its own investigative reporting. ‘“I consider the evidence that Ferguson and his associates were attempting to access City files while attempting to hide their tracks incontrovertible and damning.” This is Sharon Kennedy’s words that she printed in her then newspaper, the Fullerton Observer. The connotation and denotation for ” damning” is to strongly suggest someone is guilty of a crime. What evidence did Sharon Kennedy print in her newspaper that supported her accusing Ferguson and Curlee of a crime? Ferguson and Curlee may sue Sharon Kennedy for libel. My question to Jane is in light of the facts that Sharon Kennedy’s Fullerton Observer knowingly engaged in unethical behavior that harmed two innocent persons why she continues to blindly support Sharon Kennedy’s nefarious actions?

  8. another Dear Jane comment “Uh, so then, why didn’t the city do a proper investigation before jumping to the conclusion that the documents were stolen and what kind of bad advice did the council get from the city attorney to cause this grave error?” I guess the city of Fullerton was suffering from “indifference” to the truth. This is not the first time someone speaking on behalf of city of Fullerton has used this word to excuse their criminal acts.

    • Once again, please read the actual Observer reports – which are posted above the comments. Neither the Observer or myself accused FFFF bloggers of anything. We did publish the opinion of a computer cyber expert – but that is his opinion. The expert said the trail (as evidenced through dropbox records that required, but did not get, a sign-out to remain anonymous) showed that the confidential files were downloaded to a computer at one of the blogger’s workplace using a stealth address. Because file folders that the city did give permission to access were also downloaded to that work computer using a regular IP address the connection was made by the expert that the person doing the downloading of files was the same. The Observer and the expert did both fault the city for giving FFFF bloggers passwords to the entire dropbox. The giving of those passwords – whether intentional or by city employee error (as the city contends) makes the taking of those confidential files not a crime. I was not in favor of the city action to drag FFFF into court. This has been a huge waste of money.

      • Sharon, the “entire Dropbox” did not have a password. The court documents reiterated this point repeatedly.

        You’re confused again.

  9. ‘“I consider the evidence that Ferguson and his associates were attempting to access City files while attempting to hide their tracks incontrovertible and damning.” so, when editor/owner of the newspaper Fullerton Observer, you did not print your statement

    • Hilda – you are repeating the cyber experts opinion – not mine or anyone else at the paper. We printed everyone’s statements though did not interview ourselves for the article. Again – read the article posted before comments start.

      • The original article said you “reached out” to your so-called expert.

        That’s not what the “expert” said in a statement that somehow ended up as a an official Declaration to the Court in this case in November 2019, to wit:

        I was retained by the newspaper, Fullerton Observer, to analyze the expert
        declaration of Matthew Strebe submitted by the City of Fullerton and provide an independent
        opinion on whether a connection could be made between the City of Fullerton’s Dropbox account
        and the Defendants associated with Friends for Fullerton’s Future Blog, including named
        defendants Joshua Ferguson and David Curlee.

        Hmm. So you “retained” this so-called expert? Who paid for that? Expert testimony ain’t free and The Observer was never known to be unduly burdened by excess wealth or a sense of accurate reporting. And what sort of real journalists buy expert opinions?

        BTW, how did you happen to find this “expert” in the first place. One begins to smell the odor of several rodents at work.

  10. Jeff – You are right and thanks for that correction. It was a link that was sent to FFFF that gave them access to the entire dropbox.

    • Sharon, Mr. Zenger has brought up several good and pertinent questions, why are you not answering those questions?

      • I saw nothing pertinent – basically bashing my wonderful father.
        Not worth a reply. And his other comments are a misunderstanding of newspapers. I do agree with the horrendous waste of city funds to try to recover files that have probably long been replicated and passed on. The outcome of this trial was predictable.

      • Well, how about telling the tale of how you found your “expert” and who paid him and how his “opinion” became part of the court case.

        Your wonderful father had no problem bashing people he didn’t like and in print, Maybe that’s where you got your penchant for confusing your own biased vitriol with “news.” And as far as misunderstanding what newspapers are for, I suggest you report back when you have actual experience working for a real one.

  11. What a load of politician pond scum from Jesus Quirk. Fiduciary duty? Did he say that with a straight face? Or was his facial hair hiding his smirk. Did hold up your end of the bargain. You sued bloggers to satisfy a personal vendetta. Now Fullerton has less money to fix roads.

    • It would be too bad to see the Observer site for open discussion dissolve down to name-calling. Does the Observer have any guidelines for online comments?

  12. “Does the Observer have any guidelines for online comments?” Maybe the new owners of the Fullerton Observer have guidelines for “name-calling” unlike the previous owner and editor, Sharon Kennedy, who called two innocent men thieves in an article she published in her newspaper, the Fullerton Observer. “basically bashing my wonderful father.” is the reason former owner and editor refuses to answer the hard questions asked of her by David Zenger? If I correctly recall, Knowlwoods, demanded a public apology for an article Ralph Kennedy printed about this restaurant in his newspaper, the Fullerton Observer. “bashing” is not an exclusive trait.

    • Hilda, I remember when Ralphie went beyond mere name-calling with Linda Lequire about something or other. Unlike most of his targets for snide innuendo and personal attack she threatened legal action and he was forced to print an retraction.

      The sad thing about Kennedy was that he actually stood for something once, and I liked him. Then the Recall of 1994 rolled around and a bunch of people he never heard of – like Bruce Whitaker – threatened an establishment that had treated Kennedy with nothing but disdain. He quickly became a running dog of City Hall and everything changed. Sharon Kennedy just followed in those footsteps mixing personal animus with “news.”

      The Observer still makes the same gratuitous efforts to attack people – the latest was when printing Tony Bushala’s campaign contributions to councilmen who had actually just APPROVED something Tony stood up and opposed. Naturally, Sharon Kennedy commented that that irrelevant tidbit was somehow illuminating.

      For her to complain about “name calling” in and about the precincts of The Observer is laughable.

      Anyway, if she won’t tell us how she found her “expert” and how that opinion leapt from the pages of the Observer and into the court records will come out even if she refuses to volunteer the information.

  13. You obviously don’t actually read the paper or you would know all of what you have said is false. Take a minute and read the articles posted before the comments begin.

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