The city is threatening to sue us… again.
Let’s have a look at the newest letter from the city (PDF HERE) before getting into why this is happening:
Dear Ms. Aviles:
VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED
As legal counsel for the City of Fullerton, I write, pursuant to California Government Code section 6204 et seq., to notify you, as legal counsel to the owner(s) and/or operator(s) of the Friends for Fullerton’s Future (FFFF) blog, that the City of Fullerton has reasonable grounds to believe that owner(s) and/or operator(s) of the FFFF blog are in unlawful possession of records belonging to the City of Fullerton. The records were taken and used by FFFF blog owner(s) and/or operator(s) without the City’s authorization and fall within the definition of “record” under California Government Code Section 6204(a)(2), as well as the definition of “public records” under California Government Code § 6252(e), and are described as follows:
Any and all records obtained from the City of Fullerton’s Dropbox account (https://cityoffullerton.com/outbox) that were not directly provided by the City to Joshua Ferguson or any of FFFF’s agents or associates through an emailed link, including, but not limited to, records contained in a folder named “prl 919 – Josh Ferguson.”
Therefore, pursuant to Govemmentt Code section 6204, within twenty (20) calendar days of receiving this notice, the owner(s) and/or operator(s) of the Friends for Fullerton’s Future blog are hereby directed to either:
- (1) Return the above-referenced records to the City of Fullerton, as previously requested; or
- (2) Respond in writing and declare why the above-referenced records do not belong to the City of Fullerton. Ifthe owner(s) and/or operator(s) of the Friends for Fullerton’s Future blog do not deliver the above-described records, or do not respond adequately to this notice and its demand within the required time, we will immediately thereafter petition the Superior Court of Orange County for an order requiring the return of these records.
We further note that the FFFF blog has posted many of the confidential City documents after receipt of our office’s June 13, 2019 cease-and-desist email. (A copy of that email is enclosed herein). Many, if not all, of the confidential City records posted to the FFFF blog are explicitly exempted from disclosure under the California Public Records Act, would not have been provided to Mr. Ferguson or FFFF agents or associates in response to a Public Records Act request, and could only have been obtained without the City’s express authorization. Such records posted to the FFFF blog are confidential and exempt from disclosure pursuant to the following authorities:
- “Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.” Cal. Gov’t Code § 6254(a);
- “Records pertaining to pending litigation to which the public agency is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810), until the pending litigation or claim has been finally adjudicated or otherwise settled.” Cal. Gov’t Code § 6254(b);
- “Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Cal. Gov’t Code § 6254(c);
- Law enforcement investigative records. Cal. Gov’t Code § 6254(f); and
- “Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” Cal. Gov’t Code § 6254(k), which includes the following privileges:
o Attorney-client privileged records. Cal. Evid. Code 950 et seq.; Roberts v. City of Palmdale, 5 Cal. 4th 363 (1993);
o Attorney work product. Cal. Civ. Proc. Code § 2018.010 et seq.;
o Peace officer personnel records. Cal. Penal Code § 832.7 et seq.; and o Confidential closed session information. Cal. Gov’t Code § 54963.
FFFF’s unauthorized access and misuse of the City’s clearly privileged and exempted documents constitute a violation of California Penal Code section 502, which grants civil remedies (including compensatory damages, attorney’s fees and potential punitive damages) to any persons or entities injured by any violations thereof. See Cal. Pen. Code § 502(c), (e).
As such, unless FFFF complies with the demands set forth in the City’s June 13, 2019 cease and desist letter within 24 hours, the City will have no choice but to pursue all criminal and civil remedies available to it under the law.
Bruce A. Lindsay
What is this all about?
For those in the cheap seats we at Friends For Fullerton’s Future broke news story after new story by publishing documents that the city didn’t want disclosed and tying those documents to local events and items of public interest. Those stories include, but are not limited to:
The city settling with a police officer to sidestep disclosure laws regarding police misconduct.
The results of a Body Worn Camera audit for a School Resource Police Officer who had, what appears to be, child pornography on his (or perhaps department issued) cell phone.
An insurance payout for an accident that destroyed a city vehicle.
Likely fraud by city employees costing over $50,000 worth of waste/theft.
Possible Accounting fraud within the city budget used to hide salary costs.
A city council member specifically targeting one businesses.
Massive Police Overtime abuse that went on for 6 years.
Evidence that the city is lying and violating the California Public Records Act.
In short, they’re mad that we’re doing what journalists are supposed to do daily. We’re using information to piece together stories in order to inform the public.
These latest threats are meant to serve as a chilling effect to silence people who would dare impugn the character of Fullerton with facts the city wants obscured. I’m hesitant to head to city hall or go to council meetings lately knowing that the city is targeting me personally for the use of free speech on this news site / blog. And that’s really the point of these types of threats – to silence dissenters.
How will we respond to this latest salvo by the city? I reckon we’ll confer with our legal counsel and act accordingly.