Matthew Leslie

It’s an ugly day when a municipality sues its own residents in an effort to seize back digital files left unguarded on its own website.* By now readers should be aware that the City of Fullerton is suing the publishers of the Friends for Fullerton’s Future (FFFF) blog over the blog’s publication of numerous files obtained without authorization, but without evident illegal activity–despite claims by the city attorney–from a Dropbox folder (mis)managed by the city itself. A court has already refused the city’s request to have the servers and computers associated with the bloggers seized and examined, and the order the city did obtain at the same hearing enjoining FFFF from further publishing the materials in question has just today been stayed by an appeals court.

The Fullerton City Council is wasting its time and our money on a lawsuit that will almost certainly be decided against the city on free speech grounds. Courts have long held against lawsuits that constitute prior restraint when it comes to a free press, and there is no reason to think the city’s case will end any differently. Just yesterday The Reporters Committee for Freedom of the Press filed an amicus brief in support of FFFF. The RCFP characterizes the suit as “A brazen misuse of computer crime laws against journalists.” (Speaking of laws, if FFFF did break the law by accessing the files in question, why have they not been criminally charged for doing so?)

The decision to sue FFFF and some of its named bloggers was made in closed session on September 17, but only reported this past Tuesday when the City Attorney during a meeting of the City Council finally acknowledged what should have been reported over a month and a half ago.  At the time the Fullerton City Council’s unanimous vote to initiate legal proceedings against FFFF for publishing stories referencing city employee personnel files might have seemed the responsible thing to do, on some level, in order to protect the privacy of the employees and diminish the chances of the city itself being sued by them for its own abysmal failure to secure such sensitive files in the first place. Either way, they ought have known that their chances of prevailing were slim, and ought to have had legal counsel tell them so.

Readers can decide for themselves whether or not they approve of FFFF’s tactics, but there is no denying that they have exposed some questionable practices by city management. Our government shouldn’t use litigation to shield itself from public scrutiny, especially when it is transparency itself that is in question. Suing to save face is an irresponsible use of public funds. A full hearing of the case is scheduled for November 21, but it’s hard to imagine that the case will ultimately stop publication of any files at this point. The city should cut its losses and drop the case now.

*(For coverage of the case see Spencer Custodio’s reporting in the Voice of OC)