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.”
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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