A lot has happened in Fullerton over the last several years and while my involvement has waned ever since the City threatened me civilly and criminally because I happen to be associated with this blog, and this blog published embarrassing things City Hall would rather hide from the people, I have remained committed to finding the truth and speaking up against the vapid and self-serving corruption of our council majority & the city hall they oversee.
In my capacity as a chronic malcontent these last few years I have made numerous records requests looking for information and many of those requests have been ignored, delayed or denied owing to dubious legal claims or just outright misrepresentations of the law. As such I have opted to sue the city of Fullerton for violations of the California Public Records Act.
The now filed Petition for Writ of Mandate alleges that the City of Fullerton has violated the CPRA in regards to my records requests related to no less than 5 separate issues.
Back when I first started filing requests, specifically for the body worn camera and dash cam videos of the Joe Felz DUI incident, the city was able to hide behind a lack of enforceable disclosure laws as SB1421 was not yet the law of the land. Cities did/do this because they know it takes a lot of time, effort and commitment to make them comply with disclosure laws.
Here in Fullerton the arrogance got so bad that they didn’t even try to hide their disdain for the public and transparency. At one point after claiming the Felz video was exempt from disclosure owing to the non-existent sham investigation, City Attorney Gregory Palmer asserted to me; “If you are dissatisfied with the response you have remedies”.
Skip ahead a few years and it turns out I DO have remedies and I have opted to act upon them. Hence this lawsuit.
For those interested, the lawsuit reads as follows (after the jump, emphasis in original, exhibits in the Writ link above):
In recent years, the issues of police accountability and transparency have been the subject of significant public attention and controversy as part of a broader public debate regarding criminal justice reform.
The public’s right to find out about these issues, and all issues affecting government, is protected by the California Public Records Act (“CPRA”) and the California Constitution.
With the passage of Senate Bill 1421 (“SB 1421”), the State of California made certain records related to law enforcement misconduct publicly available under the CPRA, declaring that “[c]oncealing crucial public safety matters such as officer violations of civilians’ rights…undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.”
SB 1421 amended the law to make law enforcement personnel records public where there is an officer-involved shooting, use of force resulting in serious bodily injury or death, sexual assault by an officer, or a sustained finding that the officer engaged in dishonesty. The law took effect on January 1, 2019.
As it pertains to public personnel other than law enforcement, the law is well settled and provides for a broad right of access to public records concerning complaints and discipline against public servants.
The CITY OF FULLERTON is unlawfully delaying and withholding access to public records in response to several of requests submitted by JOSHUA FERGUSON, including records related to police misconduct, a complaint against a City Parks and Recreation Commissioner, an accident involving a City Parks and Recreation vehicle, and the separation of two public employees arising from misconduct. Therefore, Petitioner brings this suit to obtain a court order requiring the CITY OF FULLERTON to provide access to these important public records.
The specific issues of contention are as follows:
The SB 1421 Requests
Between January 2, 2019, and January 7, 2019, Petitioner sent three California Public Records Act requests to the City for SB 1421 records via email. The first request sought all records related to Fullerton Police Department officers made are disclosable under SB 1421. The second request sought SB 1421 records related to 46 named officers. The third request sought records related to 5 named officers. True and correct copies of Petitioner’s three SB 1421 requests are attached as Exhibit A.
On January 9, 2018, the City responded via email inquiring as to whether the requests naming specific officers was meant to narrow the first request for all SB1421 records. The City further stated that it needed clarification as to what records within the scope of SB 1421 Petitioner was requesting. Petitioner responded the same day, confirming that while the more specific requests named officers Petitioner suspected had records subject to disclosure under SB 1421, but that he still sought all records within the scope of SB 1421. A true and correct copy of the City’s January 9 email and Petitioner’s response are attached as Exhibit B.
On March 1, 2019, the City sent an email regarding the SB 1421 requests.
In its email, the City stated that it was “still in the process of preparing the records for production” and that it expected to make files available on a rolling basis beginning on March 11, 2019. A true and accurate copy of the City’s March 1 email is attached as Exhibit C. The City did not state whether it determined that disclosable records existed for each of the specific officers named in the second and third requests or whether it would be withholding any requested records from disclosure as required by Government Code section 6253(b).
The City did not begin releasing the SB 1421 records on March 11, 2019.
15. Instead, it was not until June 24, 2019, when the City informed Petitioner via email that “[i]nitial SB 1421 responsive records have been posted on the City’s website.” The City stated that it would continue to produce responsive records on a rolling basis “as review and redaction of confidential information is completed,” and the City provided a link to www.cityoffullerton.com/sb1421. A true and accurate copy of the City’s June 24 email is attached as Exhibit D. However, at no time has the City informed Petitioner whether it intends to release records for each of the named officers in the second and third requests, whether it intends to permanently deny Petitioner access to records for certain officers, whether it intends to withhold any responsive records, or the date upon which it intends to make additional SB 1421 records publicly available.
While the City has not released a list of officers for whom it intends to release SB 1421 records, Petitioner is informed and believes and on that basis alleges that the City has engaged in negotiations with certain officers to amend past disciplinary notices to remove SB 1421 eligible allegations, thereby circumventing transparency requirements. Petitioner is informed and believes and on that basis the City and former Fullerton police officer Kathryn Hamel entered into an agreement after the City issued a Notice of Intent to Discipline Hamel for various allegations relating to “dishonesty, deceit, untruthfulness, false or misleading statements” and/or “ethics or maliciousness.” Petitioner is informed and believes and on that basis alleges that a true and accurate copy of the Draft Settlement Agreement is attached as Exhibit E. In that agreement, the City agreed to revise the Notice of Intent to Discipline to remove those allegations if Hamel resigned, to not release the file pursuant to SB 1421, and agreed to defend against any SB 1421 request in court.
The Cox Complaint Request
On August 20, 2018, Petitioner filed a complaint against Gretchen Cox, a City Parks and Recreation Commissioner, alleging that Cox violated City policy by engaging in harassment and by improperly criticizing the City Council in a public forum. On January 5, 2019, Petitioner requested all information related to the complaint, including any emails, communications, investigation materials and findings. A true and correct copy Petitioner’s January 5 request is attached as Exhibit F.
On January 7, 2019, the City denied Petitioner’s request via email. The City withheld all records, asserting that responsive records are exempt under Government Code § 6254(c), Evidence Code § 950 et seq., and Code of Civil Procedure § 2018.010. A
true and correct copy of the City’s denial is attached as Exhibit G.
On February 19, 2019, the City released a letter to Petitioner regarding the Cox complaint. As to the allegation that Commissioner Cox engaged in harassment, the City confirmed Cox engaged in the alleged behavior, but denied the conduct violated City policy. The City sustained the allegation that Cox violated policy by publicly criticizing the City Council. A true and accurate copy of the Cox complaint response letter is attached as Exhibit H.
The Corbett Body Camera Footage Request
Petitioner is informed and believes and on that basis alleges that on December 19, 2016, a member of the public made a complaint against Fullerton Police Sergeant Jeff Corbett alleging, in pertinent part, that Sergeant Corbett made special accommodations for former City Manager Joseph Felz while investigation a DUI and hit and run. Petitioner is further informed and believes that the complaint alleged that Sergeant Corbett, as part of the accommodation, engaged in dishonesty by falsifying a police report and that a January 23, 2018, Fullerton Police Department Administrative Investigation report confirmed the allegations, finding that Sergeant Corbett “purposely failed to conduct a proper investigation and provided false information under FPD case #16-74804, in violation of PC – 118.1 False Report by a Peace Officer.” Petitioner is informed and believes and, on that basis, alleges that a true and accurate copy of the Administrative Investigation report is attached as Exhibit I.
On February 4, 2019, Petitioner submitted a CPRA request for six clearly identified clips of body camera footage used by the City to make the sustained finding of dishonesty against Officer Jeff Corbett. Petitioner identified the case number, the Officers who uploaded the videos, and the statement from the City’s investigation which confirms the City reviewed the body camera footage as evidence in making its sustained finding. A true and accurate copy of Petitioner’s February 4 request is attached as Exhibit J.
On February 14, 2019, denied Petitioner’s request as to all records. In so doing, the City asserted that the records Petitioner sought are exempt under Government Code §§ 6254(c), 6254(f), and 6254(k), as well as Penal Code §§ 832.7 and 832.8, and Government Code § 6255, but failed to provide any reason as to why the records were not made disclosable by SB 1421. A true and accurate copy of the City’s February 14 denial is attached as Exhibit K.
The St. Paul/Phan and Parks and Recreation Vehicle Request
On February 5, 2019, Petitioner submitted a CPRA request for two categories of records: (1) all information regarding the terminations of two city employees, Bob St. Paul and Trung Phan and (2) all information relating to an accident in which a City Parks and Recreation vehicle, license place #121521, was overturned. Petitioner included a photo of the overturned vehicle. A true and accurate copy of Petitioner’s February 5 request, including the photo, is attached as Exhibit L.
On February 15, 2019, the City responded, denying Petitioner’s request as to all records. As to the St. Paul/Phan records, the City claimed both that “there are no records” and that the records are exempt under Government Code §§ 6254(c) and 6255. As to the overturned vehicle request, the City claimed that all records relating to the accident are exempt under Government Code §§ 6254(b), 6254(c), 6254(f), and 6254(k); Government Code § 54963, Evidence Code § 950 et seq., Code of Civil Procedure §2018.010, and Government Code § 6255. A true and accurate copy of the City’s February 15 denial is attached as Exhibit M.
Petitioner is informed and believes and, on that basis alleges, that employees St. Paul and Phan’s employment with the City was terminated after allegations of misconduct and that the responsive records related to their departure form the City exist and are not exempt, as the City claimed.
The city will be served this week and we will keep you updated as things progress.