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A southern California city agreed to settle in a case against two citizen bloggers accused of publishing confidential city hall documents, including police misconduct records, obtained without permission.
The city of Fullerton, located in Orange County, agreed to pay $350,000 and issue a public apology on its website to Joshua Ferguson and David Curlee, who ran the local blog "Friends for Fullerton’s Future."
The bloggers had taken documents off of a city file sharing account, publishing some of them that they viewed as newsworthy. Fullerton officials initially accused the bloggers of hacking into their system, obtaining the files illegally, but further investigation revealed the files were unintentionally left publicly accessible and that the file sharing account did not have the proper password protections.
"The city has worked to protect the confidentiality of non-public documents while assuring robust public access to public records," the agreement says. "While our attempts to secure these 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 settlement was approved by the Fullerton City Council along a 3-2 vote last week, ending the lawsuit that sparked debate over censorship and freedom of speech, The Orange County Register reported.
Though not all the documents taken from the account were published, those that did appear on the blog detailed negotiations with a rogue police official, who ultimately took a deal to resign, ending an investigation that could have resulted in documents about any misconduct being made public. Critics had accused the city of sidestepping a police transparency law.
Courts had placed gag orders on the bloggers to prevent them from publishing additional police records. As part of the settlement reached last week, Ferguson and Curlee agreed to return any additional documents containing confidential records and to delete any copies.
"I’m glad we’re getting our documents back," Fullerton’s attorney, Kimberly Hall Barlow, told KTLA, adding that the city acted in good faith in filing its lawsuit against the bloggers in 2019. "That was the entire goal of the litigation."
While neither Curlee nor Ferguson faced formal charges, the city’s accusations of criminal activity cost the bloggers relationships with their friends and family members, their attorney, Kelly Aviles, told the Register. She said Ferguson was also fired from his job over the litigation.
"It was really traumatic for them," Aviles said. "The city shouldn’t have tried to blame their mistakes on journalists trying to cover the city."
In an effort to fulfill its duty to respond to public records requests in a timely manner, the city of Fullerton had initiated a file sharing program and staff members began placing folders and files on a shared drive and created a shortcut link to the shared file account, the agreement says.
City staff began placing "large volumes" of records in the file to be reviewed by the city attorney, who was to make the redactions necessary to protect victims and witnesses as required under law. But "due to errors by former employees in the City in configuring the account, the files and folders were in fact accessible and able to be downloaded by the public," the agreement says.
Some files were supposed to be password protected, but "due to lax password controls," Ferguson, Curlee and possibly others would have been able to unzip files without bypassing access controls because the same passwords may have been reused for multiple files or disclosed in public records.
Based on additional investigation, and conversations with Ferguson and Curlee, Fullerton "now understands that the documents were not stolen or illegally taken from the shared file account, as the City has previously believed or asserted," the agreement says. "Rather the documents were made inadvertently available by the City in response to PRA [Public Records Act] requests."
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The city maintains that its primary goal was to retrieve confidential documents for protection of city employees, residents and those doing business with the city, the agreement says. Meanwhile, the bloggers maintain that any information they published was of "public concern" and did not contain confidential information, such as home addresses, Social Security numbers or medical information.
Ferguson and Curlee each will receive a payment of $60,000. The city of Fullerton will also cover their legal fees by paying Aviles’ law firm $230,000.
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