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Fullerton city officials must prove resident Joshua Ferguson and the blog he writes for stole secret city hall documents — including files on how a former city manager potentially escaped a DUI — or else the city’s case against Ferguson is in jeopardy.

Orange County Superior Court Judge James Crandall said Ferguson and the blog are protected by the First Amendment, regardless of the city’s claim Ferguson stole the documents from a Dropbox account and published the documents.

“What an interesting case,” said Crandall during last Thursday’s court hearing. “It presents some very interesting constitutional issues.”

Crandall’s tentative ruling states the city needs to prove Ferguson and the blog, Friends for Fullerton’s Future, stole the documents.

“News reporting and newsgathering constitute such protected conduct, even where the plaintiff (Fullerton) contends that the conduct used to gather information was unlawful or illegal,” reads Crandall’s tentative ruling. “The defendants (Ferguson and the blog) here do not concede that their activity was illegal, and the evidence has not been properly presented to the court. As a result, the burden shifts to plaintiff (Fullerton) to show a probability of prevailing on its claims.”

In court, Crandall said, “My tentative is illustrative of my thought process.”

Fullerton city attorneys allege Ferguson and the blog, illegally accessed the city’s Dropbox account, downloaded files and began publishing some of the files to the blog.

Instead of filing a criminal case with the Orange County District Attorney’s office, Fullerton attorneys instead have sued Ferguson in civil court.

Last Thursday’s hearing was on Ferguson’s anti-Strategic Litigation Against Public Participation (SLAPP) court motion, filed by his attorney Kelly Aviles.

Aviles is also Voice of OC’s chief public records litigator.

SLAPP lawsuits are usually used to silence critics through drawn-out litigation, which can bury people under legal fees.

“They run up attorney fees,” Aviles told Crandall. “They (Fullerton) filed dozens and dozens of declarations.”

Fullerton City Attorney Kimberly Hall Barlow said the lawsuit against Ferguson isn’t a SLAPP.

“I’m confident the court will deny the SLAPP,” Barlow said in court. “There’s no court that has held that stealing documents is protected … the publication (of the documents) is proof of the stealing.”

Crandall countered and said SLAPP broadly applies to First Amendment cases. He also read aloud portions of the law.

“Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest,” states the law.

Fullerton Councilwoman Jan Flory said she couldn’t speak to specifics about the case, or state whether she thinks it’s a good idea to continue the lawsuit or pull back from it.

But she said it could be ended if Ferguson decided to settle with the city.

“It has been stated repeatedly that if Josh Ferguson would merely return the documents, that that would end the case. At least it would end the city’s case. But that would be a big step towards reconciliation,” said Flory in a Thursday interview.

“Now, if the party’s settle, I don’t see any First Amendment rights issues at all. Everybody’s a big boy in this firestorm and they have the right to make a decision that will end the case,” Flory said.

Councilman Bruce Whitaker said he’s against the lawsuit.

“I obviously voted against the city being the aggressor on this. I would like to see some kind of work-out here,” Whitaker said in a Thursday interview.

Whitaker said it’s a tough spot because some information in the files could be social security numbers or medical records, which could make the city liable to legal claims from employees.

“The city’s actual interest in this is to be able to assure those who may be damaged if certain information is released. That the city is trying to prevent that damage, the city is looking to reduce or protect them from that,” Whitaker said. “To me it’s hard to understand why the blog would utilize that information in such a way, but the city can’t really act carefree about this — it has to have concern about it.”

He said the City Council should be held accountable for lawsuits like the one against Ferguson.

“It’s within the council’s scope and responsibility to provide direction to the law firm (Jones and Mayer), to any law firm,” Whitaker said. “I think the public needs to hold the Council accountable, really.”

Fullerton city attorneys were able to get Orange County Superior Court Judge Thomas Delaney to block Ferguson and the blog from publishing any more secret city hall documents Oct. 25.

But the Fourth District Court of Appeal blocked that order Nov,. 7 and is waiting on the lower court’s decision.

Although the publishing gag was shot down, Fullerton still wants Ferguson and the blog to hand over and wipe out all of the documents they might have.

Crandall expedited the case, noting the appellate court’s interest in it, and scheduled both the SLAPP hearing and the city’s request for injunction to Feb. 27.

Initially, the city claimed Ferguson stole 50 files, but later shortened the list to 19.

David Snyder, executive director of the First Amendment Coalition, said the reduced number of allegedly stolen files is concerning.

“It is troubling that they came to realize only well after the fact that there were far fewer files actually at issue than when they originally started all this,” said Snyder in a Feb. 5 interview.

“You would think that they have that nailed down before they went to court,” he said.

Snyder the files may have been accidentally disclosed since they were kept on a Dropbox account.

He said Ferguson and the blog are protected under the First Amendment as long as it’s proven they didn’t hack Fullerton’s Dropbox.

“They are protected under the First Amendment from civil or criminal liability to publish that information. If the city accidentally disclosed records to somebody, the First Amendment protects their ability to publish their records,” Snyder said.

The blog and Ferguson caught the city’s attention in June when secret city hall documents began being published on the site last June. The blog began posting documents last June from an internal police department investigation detailing how former City Manager Joe Felz got a ride home from Fullerton police officers after drinking and wrecking his car election night 2016. The investigation had statements from officers who were at the scene.

Felz retired December 2016, a month after the crash, and was charged with driving under the influence in early 2017. But that charge was lowered and he pleaded guilty to one count of reckless driving December 2017.

The blog also detailed a potential agreement between Fullerton and former Lt. Kathryn Hamel in an effort to hide any potential misconduct records from public release under the police disclosure law — SB 1421 — that kicked in at the beginning of last year.

Before the city sued Ferguson and the blog over the secret documents, he filed a California Public Records Act lawsuit against Fullerton for allegedly failing to provide police misconduct records, including Hamel and Felz records.

Ferguson requested body camera footage from officers at the Felz crash scene, including former Sgt. Rodger Jeffery Corbett, who gave the former city manager a sobriety test, but not a breathalyzer. He also requested numerous other potential police misconduct records.

Despite an administrative investigation showing Corbett falsified the police report and purposely blew the field investigation in the Felz case, the city refused to give records and camera footage to Ferguson, according to the lawsuit against the city.

The Orange County District Attorney charged Corbett Sept. 4, 2018, with one felony count of falsifying a police report about Felz’ crash. Corbett pleaded not guilty last February and was scheduled for a pre-trial hearing this Friday.

Fullerton denied Ferguson the body camera footage from Corbett and other officers who were there. The city cited an exemption in state law that allows records to be withheld if their disclosure could jeopardize a related investigation, according to the city’s response to Ferguson’s request.

The lawsuit against Ferguson has drawn comparisons to the infamous Pentagon Papers case, as noted by observers and First Amendment advocacy groups like the First Amendment Coalition and Reporters’ Committee for Freedom of the Press.

The Pentagon Papers case started when President Richard Nixon tried to block the New York Times and other newspapers from publishing a classified study about the Vietnam War and the United States Supreme Court sided with the newspapers in 1971 and allowed publishing the study.

The 7,000-page study was leaked to the New York Times, the Washington Post and other newspapers earlier that year by Daniel Ellsberg, a military analyst for the RAND Corporation. It detailed the history of U.S. involvement in Vietnam starting in World War II until 1968, when there were over half a million troops in Vietnam. It was also the deadliest year during the war that saw nearly 17,000 troops killed.

“The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be,” wrote Justice William Douglas in his opinion on the Pentagon Papers case.

Douglas sided with the newspapers.

Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio