Appellate judge rules California blog can publish — but not destroy — city records
The city of Fullerton, California, can pursue its lawsuit against local blog Friends for Fullerton’s Future and two of its reporters, a judge ruled on March 12, 2020. Superior Court Judge James Crandall also granted the city’s motion for a preliminary injunction to bar the blog from publishing, sharing or destroying a number of city documents.
Two weeks later, on March 26, an appellate judge stayed, or paused, portions of the prior restraint, allowing the blog to publish but not destroy records.
The city alleges that the blog FFFF and journalists Joshua Ferguson and David Curlee violated state and federal anti-hacking laws by illegally accessing and downloading city files uploaded to Dropbox, a file hosting and sharing service.
Both Ferguson and Curlee told the U.S. Press Freedom Tracker that they had been provided a link to the city’s Dropbox account in response to their previous public records requests. The folder was not password protected, and anyone could access it via the web address in the link.
A previous temporary restraining order was rendered moot when this injunction was granted.
In his ruling, Crandall also denied FFFF’s motion to dismiss the suit under California’s anti-SLAPP provision, which permits courts to dismiss lawsuits that are intended to censor public speech.
Kelly Aviles, attorney for FFFF, told the Tracker they have already filed an appeal of the judge’s decision.
“The court’s denial of the anti-SLAPP motion is a big problem because it’s the only opportunity for the client to get the money that they had to expend in this case in terms of trying to get their costs back,” Aviles said. She noted that responding to dozens of declarations and briefs have driven up FFFF’s attorney’s fees and costs.
Kimberly Hall Barlow, attorney for the City of Fullerton, told the Tracker, “The city’s goal here is not to be punitive, it is to retrieve files containing confidential documents that were stolen from the Dropbox account.”
“We’re under an obligation to protect the privacy interests of the numerous individuals whose private information is included in those documents,” she said. “This is not about trying to suppress the press.”
The city also filed three deposition orders for testimony and documents from FFFF, Ferguson and Curlee, all captured in the Tracker’s subpoena category. Aviles said they were all filed after she had filed their appeal and are therefore invalid.
Hall Barlow told the Tracker the orders were filed properly and that they will continue to pursue the depositions as part of the discovery process.
Fourth Appellate District Judge Raymond Ikola, who granted the stay on the preliminary injunction on March 26, granted a writ of supersedeas on April 2, which lifts the restraint on publishing throughout the appellate hearings.
Curlee told the Tracker that he is hopeful that the appellate court will understand the conditions of the case more clearly.
“My hope is that they understand this better and realize that no crime occurred, no theft occurred,” he said. “We’re hopeful that the appeals court will see this for what it is and not by the city’s argument about it.”
Aviles said that she hopes all filings on their appeals will be completed in the next two to three months.
The City of Fullerton reached a settlement agreement with local blog Friends for Fullerton’s Future and two of its reporters on May 12, 2021.
The city had alleged in 2019 that FFFF and journalists Joshua Ferguson and David Curlee violated state and federal anti-hacking laws by illegally accessing and downloading city files that had been uploaded to the city’s Dropbox account. Ferguson and Curlee, who were given the link to the file hosting service by the city, maintain that the account was accessible by the general public and that retrieving the documents was part of normal newsgathering activities.
“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,” the settlement agreement reads. “Rather, the documents were made inadvertently available by the City in response to [Public Records Act] requests.”
According to the settlement agreement, Ferguson and Curlee agreed to return or delete the remaining copies of the documents they determined were not newsworthy. The city agreed to then publish a statement on its website acknowledging the error and pay both reporters $60,000 in damages and cover $230,000 of their attorneys’ fees.
Kelly Aviles, the attorney who represented Ferguson and Curlee, told the Voice of OC that the settlement exonerated her clients.
“They [the City of Fullerton] admitted that they were wrong, that my clients never did anything wrong,” Aviles said. “But more importantly they admit exactly what happened, which is the city’s error. They put documents online without having proper access controls.”
While the lawsuit against FFFF was pending, two Orange County Superior Court judges issued separate rulings barring the blog from publishing documents obtained from the city’s Dropbox account. Both prior restraints were ultimately struck down by the 4th District Court of Appeals, Voice of OC reported.