On Oct. 24, 2019, the city of Fullerton filed a lawsuit against local blogger Joshua Ferguson.
The charges allege that Ferguson hacked secret documents from the city’s online Dropbox account, publishing them on the blog, “The Friends for Fullerton’s Future” (FFFF). Ferguson has maintained his innocence, claiming the lawsuit is a retaliatory attempt against a lawsuit he filed for the city’s alleged failure to disclose public police records.
As the date approaches for the defense’s SLAPP motion on Feb. 6, the evidence presented from both sides is compelling. Until then, the public only has hard facts to decide where the guilt lies.
This is a tentative timeline composed of declarations, statements and reports from various individuals involved in the case. More will be added as further information becomes public.
Aug. 29, 2018: JOSHUA FERGUSON, writer for FFFF, emails a formal complaint to Director of Human Resources, GRETCHEN BEATTY, regarding Fullerton City Parks and Recreational Commissioner GRETCHEN COX. FERGUSON claims:
Jan. 2, 2019:
12:36 p.m. – FERGUSON sends an email to Assistant City Clerk MEA KLEIN, requesting all Fullerton Police Department records pertaining to SB 1421.
2:39 p.m. – FERGUSON sends an email to KLEIN, requesting all records applicable to SB 1421, for 46 separate Fullerton PD officers.
9:59 p.m. – FERGUSON submits public records request to KLEIN, for files pertaining to the search terms: Record Retention, Police Records, Retention, Personnel Files, Deleted Records, Oversight, Personnel Records and Limitations.
Jan. 3, 2019: Fullerton City Clerk LUCINDA WILLIAMS sends an email in response to his Jan. 2, 9:59 p.m. request, asking FERGUSON to narrow the scope of the request.
Jan. 5, 2019: FERGUSON emails public records request to KLEIN, asking for information relevant to his August 2018 COX complaint, including emails, communications, investigation materials and findings.
Jan. 7, 2019:
2:56 p.m. – KLEIN responds to his Jan. 5 public records request, informing him that information regarding the Cox investigation is exempt, citing attorney-client privilege and attorney work product.
4:29 p.m. – FERGUSON requests records from KLEIN, pursuant to the new SB 1421 law, for five Fullerton PD officers.
Jan. 9, 2019:
8:43 a.m. – FERGUSON responds to KLEIN’s email:
Feb. 4, 2019: FERGUSON submits public records request for bodycam footage from the JOE FELZ incident citing SB 1421, based on an interview with Fullerton PD Traffic Officer THOMAS FRANKE:
*In 2016, former City Manager JOE FELZ, was involved in a drunken hit and run before being pulled over by the Fullerton Police Department. He was then driven home by the FPD. One of the responding officers, former Sgt. Roger Jeffrey Corbett, was charged with falsifying the police report in an alleged attempt to downplay the incident.
Feb. 5, 2019: FERGUSON sends an email with two separate public records requests, including:
Feb. 14, 2019: WILLIAMS emails FERGUSON in response to the Feb. 4 request, informing him that the bodycam footage from the JOE FELZ incident is exempt from SB 1421. She refers him to KLEIN for any questions.
Feb. 15, 2019: KLEIN responds to Ferguson’s Feb. 5 requests, saying that the attached photo of the overturned Parks and Rec vehicle was exempt from disclosure.
Mar. 24, 2019: KLEIN responds to FERGUSON – Initial records (19-15) pertaining to SB 1421 are made available on the city’s website.
May 7, 2019: The City of Fullerton adds a zip file titled “pr1919 – JoshFerguson.zip” (the Subject File) to the city’s Dropbox, as mentioned in the Strebe declaration.
May 10, 2019: Also according to the Strebe declaration, this was the day FERGUSON allegedly accessed and downloaded the contents of the Subject File using a European VPN.
*FERGUSON has never acknowledged having downloaded the folder.
May 24, 2019:
4:59 p.m. – WILLIAMS sends an email to FERGUSON, asking him for clarification in regards to public records request made on May 14.
5:26 p.m. – FERGUSON, when asked to limit his search, replies to WILLIAMS by email saying he will contact his lawyer.
Jun. 6, 2019: City employee, MARGOT CRONCE, sends FFFF writer, DAVID CURLEE, a link and password to the city’s entire Dropbox account, in response to a public record request CURLEE made.
Some allege that information was given by accident, as mentioned in a declaration by cybersecurity expert JOHN GILBERT, on Nov. 6.
Jun. 11, 2019: FFFF publishes a post titled “Fullerton Police Cut a Deal to Bypass the Law” which included a draft agreement, “between the city and former Lt. Kathryn Hamel to halt at least one internal affairs investigation if she resigned from the department, in an effort to shield the records from a new state disclosure law that allows the public to see select police misconduct records.”
*The draft agreement was allegedly within the Subject File and accessed without permission. Ferguson claims that an anonymous source sent the information to the blog.
Jun. 13, 2019:
- City Attorney, GREG PALMER, of the law offices of Jones & Mayer, emails a cease and desist letter to FERGUSON. The letter states the blog had posted confidential personnel files from the Fullerton PD.
- FFFF publishes a post titled “What Did Kathryn Hamel Do?” which contained confidential internal communications within the Fullerton Police Department.
*Records of these emails were allegedly within the Subject File.
- FFFF publishes a post titled “What Happened to Officer Christopher Wren?” which contained a confidential Letter of Discipline to Wren, regarding an extramarital affair with a Fullerton police officer.
*The letter was allegedly within the Subject File.
Jun. 14, 2019: FERGUSON responds to PALMER’s cease and desist letter by directing him to the blog’s attorney, KELLY AVILES.
Jun. 20, 2019: FFFF publishes a post titled “Parks Employee Cost Fullerton 40K” which contained a confidential insurance claim regarding a Parks and Recreational vehicle. This is the same vehicle pictured within Ferguson’s Feb. 5 request, showing the aftermath of a crash that resulted in the car flipping over.
*The insurance claim was allegedly within the Subject File.
Jun. 27, 2019: FFFF publishes a post titled “Fight a Paramedic, Win a $100K” which contained a privileged email containing confidential human resources information.
*The email was allegedly within the Subject File.
Jul. 11, 2019: Fullerton sends cease and desist letter to FFFF, via AVILES. The letter alleges that the blog has continued to unlawfully obtain and publish secret city documents, ignoring the cease and desist letter from Jun. 13. They instruct the blog to either return the city documents or issue a statement explaining why the documents do not belong to the city. Otherwise, legal action will be taken.
Jul. 31, 2019: AVILES responds to the cease and desist letter, stating that the city’s claims were vague, as no specific documents or files of contention were ever mentioned. AVILES also wrote the city’s demand for the blog to return any documents that were in violation of the Shield Law.
Sept. 17, 2019: City Council holds an alleged closed-door session and votes to sue FERGUSON in a 5-0 decision.
Oct. 10, 2019: FERGUSON files a Public Records Lawsuit against the city of Fullerton. The lawsuit alleged that the city was withholding records that were made public, under SB 1421.
Oct. 24, 2019:
- Fullerton files an application for a Temporary Restraining Order (TRO) against FFFF, FERGUSON, CURLEE and CHRISTOPHER TENNYSON, a former co-worker of FERGUSON’S.
- AVILES files an opposition to Fullerton’s TRO, citing unconstitutional prior restraint.
- MATTHEW STREBE, Chief Executive of Connetic specializing in information technology, releases a declaration with the analysis that FERGUSON knowingly accessed confidential files using Tor and VPN software.
- KLEIN releases a declaration detailing the communications between herself, other city employees and FERGUSON pertaining to public records requests. She alleges that neither she nor any other city employee, gave FERGUSON access to the files he allegedly obtained.
- Orange County Superior Court files a declaration written by STEVE LEE, an IT specialist and founder of Glass Box Technology, who worked as a consultant with the city of Fullerton. LEE, assessing the city’s online security, found vulnerabilities that could be inadvertently revealed if a lawsuit was made public.
*LEE recommended delaying the lawsuit 30 days while Fullerton worked to secure its Dropbox. It is worth noting that the original date which LEE gave his diagnosis was never stated, nor whether the city waited 30 days before they filed the lawsuit.
Oct. 25, 2019: Initial court hearing between AVILES, defense attorney, and attorney KIMBERLY HALL BARLOW of Jones & Mayer, representing the prosecution. Arguments were heard from both sides. JUDGE THOMAS DELANEY partially grants Fullerton’s TRO request and orders FFFF to stop publishing secret city documents.
*Transcript of the hearing is available here, courtesy of Jay M. Bullard.
Oct. 31, 2019:
- AVILES files an emergency appeal to the 4th District Court to overturn JUDGE DELANEY’s gag order citing, “every day the unlawful prior restraint is hanging over the [defendants’] heads.”
- CHRISTOPHER TENNYSON, a former co-worker of FERGUSON’s at the local hobby shop, Fullerton Cameras, releases a declaration stating that Ferguson used TENNYSON’s login information to access files from the city’s Dropbox. It is worth noting that TENNYSON was originally named in the Oct. 24 lawsuit, before being dropped and providing his declaration.
Nov. 5, 2019:
Facing questions of violating the Brown Act, City Attorney DICK JONES publicly announces the unanimous City Council vote, taken Sept. 17, to file the lawsuit against FERGUSON and the blog.
A second public vote carried was out in a 4-1 decision to continue the lawsuit. City Councilman BRUCE WHITAKER dissented.
- The Appeals courts issue a stay in the Temporary Restraining Order, lifting FFFF from the gag order, in response to the Oct. 31 appeal by AVILES.
- JOHN BAMBENEK, specialist cybersecurity and intelligence, submits a declaration on behalf of the defense. BAMBENEK explains the common use of VPN software among journalists, inconsistencies within the STREBE declaration and notes the city’s Dropbox settings were public without any additional security.
Nov. 8, 2019:
FERGUSON releases a declaration stating that the city never expressed which documents contained privileged and confidential information. He also states the city never informed him he was restricted from accessing the Dropbox until Jul. 2019, when AVILES received a cease and desist letter from the city attorney.
Nov. 17, 2019: In a telephone interview with the Voice of OC, WHITAKER states that no such City Council vote to sue FERGUSON took place on Sept. 17.
Nov. 21, 2019: The exhibit list of confidential folders which FERGUSON allegedly accessed is reduced from 50, as listed in the original Oct. 24 Temporary Restraining Order, down to 18 in an edited list.
*According to FERGUSON in a Nov. 26, 2019 interview, the 32 removed folders were public record, which he legally had the right to publish before being barred when JUDGE DELANEY ruled in favor of the city’s Oct. 24 Temporary Restraining Order.
Feb. 6, 2020: Scheduled SLAPP motion, filed by the defense, argues that the lawsuit against FFFF intentionally impedes on their free speech under the burdensome cost of legal fees.
Feb. 27, 2020: Scheduled court date for a preliminary injunction hearing.