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By C. Jayden Smith

More than a year since the November 2020 censure of Councilmember Laura Ferguson, the city has not yet shed all of the fallout from that fall hearing.

Citizens recently took to council meetings to voice frustration with the city after learning that their written public comments relating to the Nov. 23, 2020 censure had been posted without redacting personal information such as email addresses, phone numbers, and home addresses—raising questions on whether the city violated residents’ rights to privacy.

In a unanimous vote on Tuesday, April 19, the City Council approved the removal of the online portal where the comments are published. The vote also directed city staff to redact any personal information—unless otherwise stated by the authors—before attaching those comments to the meeting minutes of the censure hearing.

Prior to the council’s discussion on the matter on Tuesday night, the issue had been previously brought up during the April 5 meeting by residents including Amanda Quintanilla, an outspoken member of the community who had first raised the issue to city officials this past January, calling on them to get the information removed.

“At the last City Council meeting, I requested that your assistants take down this information, and nothing was done,” she said during the early-April meeting. “I’ve sent many emails to all of you and other representatives such as Sen. (Pat) Bates and District Attorney (Todd) Spitzer, so this matter has to be addressed.”

Citing Article One, Section One of the California Constitution—which states, among other things, that all people have the right to privacy—Quintanilla has alleged those residents who submitted comments for the censure had their rights violated when the city published their information.

City Manager Erik Sund disputed such claims, arguing that “there’s been no violation of privacy. …We value privacy, and we maintain that.”

The council discussion and vote follow correspondence that Spitzer’s office had sent to residents notifying them that the DA’s office had worked with the city to address their complaints, and further explained that all requested removals of information had been conducted.

A review of the portal where the comments are posted shows that while some of the citizens’ information had been blacked out, others’ personal info remained. Quintanilla has argued that regardless of whether a person submits a request, all the personal info should have been redacted.

In an interview with San Clemente Times this past week, Quintanilla explained that she first knew about the city’s posting in January while she was preparing for an upcoming council meeting and perusing the city’s website.

She noticed two links that took her to the list of public comments from the November 2020 meeting in which she saw several names she recognized and people’s information.

Seeing that the commenters’ information was not redacted, Quintanilla said she quickly grew worried and contacted the people on the list whom she knew, with several of them telling her they were unaware of the information on the website.

One email in particular that was published online was from Ferguson’s son, a minor. In the email, he defended his mother’s First Amendment right to free speech and argued against her censure. When the city published the email, it included his personal email address.

Ferguson told SC Times that she demanded the city take down her son’s identifying information and that of others this past January, but a delay in response led to her contacting the district attorney.

“In my 18½ years with the city, there was never a practice to publish public comments and let alone private identifying information on the government website,” Ferguson said in an email before claiming that the city targeted her son and those who submitted comments in her favor. 

Sund on Tuesday night stated that the decision to create the online portal and publish comments that weren’t read aloud during the censure hearing came at the request of the attorneys who represented Ferguson, Brad Malamud and Mike Winsten.  

In an email to SC Times on Wednesday morning, April 20, Winsten said that he did not recall asking the city to create the online portal during the censure hearing. He added that even if he and Malamud had done so, the city would still have been obligated to redact commenters’ information.

“I do not have any independent recollection that I made such a request. If I/Brad/we did, that would not have relieved the City of its duties, legally, ethically or as a matter of best government practice to redact private addresses, e-mail addresses, phone numbers, or whatever else might be inappropriate, in a neutrally applied manner across all similarly situated public commenters,” he wrote.

As of this posting, Malamud had not responded to a request seeking comment.

During Tuesday’s meeting, Ferguson reiterated that the city didn’t have a standard practice of publishing public comments online, nor of attaching comments to meeting minutes during her years in city government before and in the midst of the COVID-19 pandemic, when virtual meetings were the norm.

According to the minutes of the censure hearing, there were 40 public-comment submissions that were read aloud. An additional 20 submitted comments are on the city’s webpage.

Ferguson believed the decision to post only a portion of all submitted comments was a political act to single out private citizens who mostly opposed the censure.

“Even if anybody doubts that this is not an invasion of privacy or in violation of the Government Code 6255(a), which I believe it is, it’s indecent, it’s improper, it targets people, and it’s wrong,” said Ferguson, adding that the city should have addressed the issue when it first arose in January.

She then questioned City Clerk Joanne Baade on whether city policy existed to allow for public comments to be published, and whether there were other times during Baade’s tenure that the city had posted emails it had received.

Baade said she was not aware of any policy that called for publishing public comments and that the city had, indeed, published letters or emails attached to reports in regard to public hearings, although she added that she’s tried to redact identifying information whenever she’s able to catch it.

Baade also didn’t remember why her office posted only the 20 comments her office received or who directed them to do so.

  In response to Ferguson’s question of whether the city can “dox” private citizens on a government website by making their information available to the public, City Attorney Scott Smith affirmed that the city acted in accordance with the Public Records Act.

“(It) says that if a document is provided to one citizen, as occurred in this case going into that hearing, then it needs to be provided to everybody else,” said Smith.

The first to initiate the motion to approve the staff recommendation on removing the webpage was Councilmember Kathy Ward. She added that she thought the other portal where her documents to support Ferguson’s censure are currently published should also be collapsed.

Prior to the vote, however, Mayor Pro Tem Chris Duncan railed against the time spent on the agenda item, calling it a “total embarrassment” and an injustice to city staff who dealt with, what he called, a non-issue.

He argued that the city would have received criticism whether it took down the comments or posted them as written, as staff had done, and abided by concerns of modification.

“It’s a no-win situation,” Duncan said. “Just to continue the point, we go to the district attorney’s office, (and the) deputy district attorneys say, ‘Nothing wrong here, but why don’t you go ahead and redact the ones that people requested?’ We do that.”

 He repeated that the situation was a fictionalized issue and reminded the room that there still may be people who want their comments and information listed on the city’s website, supporting the staff recommendation.

“I wish we had never wasted over half an hour of the public’s time over something that isn’t even an issue,” Duncan said, adding: “This isn’t ‘doxing’; this is just publishing information that was submitted by the public.”

Mayor Gene James apologized to anyone who had felt a chilling effect over the issue, but said he did not believe there were any nefarious actions involved. He admitted that the city could have handled the situation better by addressing it immediately in January, and that he could have done more to push it forward.

“Just when we come off of a meeting about strategic planning, when we should be looking at the vision of the city, we’re talking about this,” James said. “This is a self-imposed wound, and I will accept accountability for it.”

The latest argument over citizens’ privacy rights comes years after Transportation Corridor Agencies (TCA) had also published contact information of those who submitted comment cards for a June 2017 forum.

Quintanilla pointed out that the TCA had removed the flagged information within a week.

“Whereas, the city, I mean, it’s been, what, three months now, and they haven’t done anything,” she said. “Of course, they’re going to address it, but it’s just a matter of clicking and deleting. That’s it, and that could be resolved within seconds.”

Beyond getting the city to redact the information, Quintanilla said, Spitzer’s office should conduct a serious investigation into the matter to determine how and why the issue has progressed the way it has.

“(I think) that anybody that opposes or has any concerns with the city, that this could happen to them,” Quintanilla said. “There’s definitely a chilling factor that may affect other communication, a lot of people not wanting to send any emails or make public comments, and that’s not right.”

C. Jayden Smith graduated from Dana Hills High in 2018 before pursuing a Bachelor’s degree in digital and broadcast journalism from the University of North Texas. After graduating in December 2020, he reported for the Salina Journal in Salina, Kansas. Jayden loves college football and bothering his black lab named Shadow.

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