Beruflich Dokumente
Kultur Dokumente
4/9/2015 11:53 AM
2015-CH-05943
CALENDAR: 14
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CIRCUIT COURT OF
COOK COUNTY, ILLINOIS
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
CHANCERY DIVISION
COUNTY DEPARTMENT, CHANCERY DIVISION
CLERK DOROTHY BROWN
FREDDY MARTINEZ,
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Plaintiff,
v.
COOK COUNTY STATES
ATTORNEYS OFFICE
Defendant.
COMPLAINT
NOW COMES Plaintiff, FREDDY MARTINEZ, by his undersigned attorneys, LOEVY
& LOEVY, and brings this Freedom of Information Act suit to overturn Defendant COOK
COUNTY STATES ATTORNEYS OFFICEs refusal to disclose information about
controversial and Constitutionally suspect use of cell site simulator surveillance equipment and
evidence collected using this equipment on the basis that it would be too burdensome. In
support of his Complaint, MARTINEZ alleges:
INTRODUCTION
1.
government, it is the public policy of the State of Illinois that all persons are entitled to full and
complete information regarding the affairs of government and the official acts and policies of
those who represent them as public officials and public employees consistent with the terms of
the Illinois Freedom of Information Act (FOIA). 5 ILCS 140/1.
2.
exceptions to the principle that the people of this state have a right to full disclosure of
information relating to the decisions, policies, procedures, rules, standards, and other aspects of
government activity that affect the conduct of government and the lives of the people. Id.
3.
copying. Any public body that asserts that a record is exempt from disclosure has the burden of
proving by clear and convincing evidence that it is exempt. 5 ILCS 140/3.
4.
A request is only unduly burdensome under the law if the burden of compliance
greater importance, proceedings arising under [FOIA] shall take precedence on the docket over
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all other causes and be assigned for hearing and trial at the earliest practicable date and expedited
in every way.
6.
and intentionally violated FOIA by refusing to produce records related to the presentation of
evidence obtained through use of cell site simulators on the basis that it would be too
burdensome and is insufficiently important to the public to justify the work involved to
produce the records.
PARTIES
7.
8.
confirmed that states attorneys are subject to FOIA, holding that the contrary position of the
Kendall County states attorney, supported by CCSAO and other states attorneys, has no
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support in established principles of statutory construction and is incompatible with the FOIAs
presumption in favor of disclosure.
BACKGROUND ON CELL SITE SIMULATORS
10.
cell site simulators, or stingrays, which masquerade as cellphone towers to obtain data secretly
from all nearby cellular user devices, including obtaining data from those who are not the target
of a legitimate investigation.
11.
Chicago Police Department owns and uses cell site simulators in a manner that it
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12.
It has been reported in the press that police departments in other states have
obtained orders to use this equipment through inappropriate means and have entered plea
agreements with criminal defendants rather than reveal information about the use of the
equipment or its capabilities.
13.
Former federal Magistrate Judge Brian Owley has expressed concern that the
federal government is presenting applications for stingrays that may be misleading or not
adequately notify the magistrate judge what the application is actually seeking in terms of
electronic surveillance.
14.
Records obtained in other states indicate that the federal government has actively
attempted to force local law enforcement to keep details regarding cell site simulators secret,
even from the courts.
15.
The Judiciary Committee of the United States Senate has questioned the use of
cell site simulator equipment at the federal level and is currently seeking to determine whether its
use has been constitutional.
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16.
Foundation, and others have questioned whether local law enforcement are using cell site
simulators in a constitutionally permissible way.
17.
Bloomberg, Christian Science Monitor, The Chicago Reader, Ars Technica, In These Times, RT,
Vice, Chicagoist, and other media have covered various aspects of Chicago Police Departments
use or suspected use of cell site simulator equipment.
18.
Chicago Police Department has obtained court orders, not based on a showing of
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19.
Upon information and belief, Chicago Police Department has obtained evidence
using cell site simulators without obtaining a warrant to obtain the evidence based on a showing
of probable cause.
20.
Upon information and belief, CCSAO has presented evidence against criminal
defendants that was obtained using cell site simulators without obtaining a warrant to obtain the
evidence based on a showing of probable cause.
21.
Upon information and belief, Chicago Police Department has obtained evidence,
and CCSAO has presented evidence, that was obtained from use of cell site simulators in
reliance on court orders in which Chicago Police Department did not specifically identify in its
application that it was seeking to use a cell site simulator.
22.
There is a strong public interest in information about how local law enforcement
is using cell site simulators and the evidence obtained through simulators and with what
constitutional protections, if any.
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responded to the Request, claiming that the public interest in disclosure of the information was
not sufficient to require CCSAO even to search for records. A true and correct copy of the
response is attached as Exhibit A.
25.
only have required CCSAO to email its attorneys and report, based solely on their recollections,
if they had any such cases. MARTINEZ offered to then confer with CCSAO about further
narrowing. MARTINEZ also proposed an electronic search of CCSAOs email server for emails
using specific search terms.
26.
CCSAO agreed to discuss the proposed process with relevant staff and denied the
Request as drafted. A true and correct copy of CCSAOs response is attached as Exhibit B.
27.
After further discussions in which MARTINEZ further offered to limit the inquiry
to terrorism and narcotics cases, CCSAO refused to undertake the process proposed by
MARTINEZ to alleviate CCSAOs claimed burden concerns and failed to provide any
counterproposal. A true and correct copy of CCSAOs response is attached as Exhibit C.
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28.
this issue, National Association of Criminal Defense Lawyers v. Chicago Police Department,
which held that even several weeks of full time work by police personnel who need to
possess a high level of knowledge and sophistication did not outweigh the public interest in
disclosure of information regarding controversial policing techniques with constitutional
implications.
29.
The Illinois Attorney General has found on multiple occasions that the CCSAO
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32.
33.
The records sought in MARTINEZs original and modified FOIA requests are
FOIA.
non-exempt public records of COOK COUNTY STATES ATTORNEYS OFFICE and would
not be unduly burdensome to produce.
34.
in accordance with FOIA Section 11(f), afford this case precedence on the Courts
docket except as to causes the Court considers to be of greater importance, assign
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this case for hearing and trial at the earliest practicable date, and expedite this
case in every way;
ii.
iii.
iv.
vi.
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v.
RESPECTFULLY SUBMITTED,
____________________________
Attorneys for Plaintiff
FREDDY MARTINEZ
Matthew Topic
Joel Feldman
LOEVY & LOEVY
312 North May St., Suite 100
Chicago, IL 60607
(312) 243-5900
matt@loevy.com
joel@loevy.com
Atty. No. 41295
-7-
ANITA ALVAREZ
STATE'S ATTORNEY
(312) 603-2655
January 5, 2015
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record does not violate FOIA. Workman v. Illinois State Board of Education, 229 Ill.
App. 3d 459, 463 (2nd Dist. 1992); 2011 PAC 18793 (April27, 2012) (same). See also
Heinrich v. White, 2012 IL App (2d) 110564, ~r1o, 975 N.E.2d 726 (2nd Dist. 2012)
(holding that "a request for records not yet created is invalid"). On this basis, I deny
your FOIA request.
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See Shehadeh, 2013 ILApp (4th) 120742 at 'n5 and 34,996 N.E.2d at 1245 and 1249.
Under Shehadeh, a hand count of the hundreds of thousands of criminal cases that the
SAO currently has is unduly burdensome under Section 3(g) of FOIA and I deny the
request on that alternative basis. If you wish to narrow your FOIA request to a request
for documents about a particular case, the SAO will consider that request at that time.
Accordingly, and for the foregoing legal reasons, I respectfully deny your FOIA
request. You have a right to appeal this decision to Sarah Pratt, Public Access
Counselor, Office of the Illinois Attorney General, 500 S. 2nd Street, Springfield, Illinois
62706, (phone number 1-877-299-FOIA) or to seek judicial review under Section 11 of
FOIA, 5 ILCS 140/11 (2014).
Sincerely,
c...~...
Paul A. Castiglione
Executive Assistant State's Attorney
for Policy
69 West Washington St.
Suite 3200
Chicago, Illinois 60602
(312) 603-1840
c..
ANITA ALVAREZ
STATE'S ATTORNEY
PAULA. CASTIGLIONE
EXECUTIVE ASSISTANT STATE'S ATTORNEY
FOR POLICY
(312) 603-1840
(312) 603-2655
January 6, 2015
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Exhibit B
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I am going to treat your 115/14 e-mail to the SAO as an additional FOIA request and
will respond to each portion of that request individually.
You request that the SAO send an e-mail to all Assistant State's Attorneys
asking each to identify, based on memory, any cases in which evidence was obtained
using a stingray. There are over 800 Assistant State's Attorneys in the SAO. And,
unless an issue arose at trial in which proof needed to be adduced to show the source of
some particular evidence, an ASA who tried a case in which some law enforcement
officials obtained information from a cell site simulator would likely not know whether
any evidence in that case was obtained through a stingray. And, in any event, your
suggestion of masse-mails would require ASA's to make phone calls to law enforcement
(which FOIA does not require) and to conduct the type of hand counts of cases that the
appellate court has already held to be unduly burdensome under Section 3(g). See, e.g.,
Shehadeh v. Madigan, 2013 IL App (4th) 120742, 996 N.E.2d 1243 (4th Dist. 2013)
(holding that a FOIA requestto the Attorney General's ofll.ce was unduly burdensome
under Section 3(g) because it required a hand count of9,200 documents). Your request
would further burden the SAO by requiring personnel to follow up with any of the 800
plus Assistant State's Attorneys who do not respond in a timely manner, who respond
with questions or whose response is potentially incomplete or vague. The response also
arguably requires outreach. to former Assistants who no longer work in the office. FOIA
does not place such an unreasonable burden on a public office.
You also request that the SAO conduct a server-side centralized search of emails
(both within CCSAO and the e-mails stored by the County) for "stingray," "IMSI
catcher," and "cell cite simulator" and produce any non-exempt records. This request is
also unduly burdensome under Section 3(g).
In 2013, I has occasion to ask the County to conduct a search of e-mails for
around 20 SAO employees looking fore-mails from a two year window and using about
a half-dozen search terms. That search took several months. Here, you are asking the
SAO and the County to search thee-mails of the entire office over an unspecified time
period using three search terms. This request would take at least a month or two, if not
longer. Consequently, I deny this portion of your FOIA request on the grounds that it is
unduly burdensome under Section 3(g).
Finally, I have spoken with Kent Ray and we would be able to speak with you
about your two latest FOIA requests on Thursday, January 8, 2015 at 11:00 a.m.
Please let me or Kent know if that time works for you. Thanks.
Accordingly, and for the foregoing legal reasons, I respectfully deny your FOIA
request. You have a right to appeal this decision to Sarah Pratt, Public Access
Counselor, Office of the Illinois Attorney General, 500 S. 2nd Street, Springfield, Illinois
62706, (phone number 1-877-299-FOIA) or to seek judicial review under Section 11 of
FOIA, 5 ILCS 140/11 (2014).
Sincerely,
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f,.,.,_J
c... f yt.:
Paul A. Castiglione
Executive Assistant State's Attorney
for Policy
69 West Washington St.
Suite 3200
Chicago, Illinois 60602
(312) 603:1840
ANITA ALVAREZ
STATE'S ATTORNEY
PAULA. CASTIGLIONE
EXECUTIVE ASSISTANT STATE'S ATTORNEY
FOR POLICY
PATJL.CASTIGLIONE@COOKCOUNTYIL.GOV
(312) 603-2655
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or terrorism cases in any type of searchable format. As you may be aware, FOIA does
not impose a duty to create lists or other public records for purposes of the statute and
the failure to furnish a non-existent record does not violate FOIA. Workman v. Illinois
State Board of Education, 229 Ill. App. 3d 459, 463 (2nd Dist. 1992); 2011 PAC 18793
(April27, 2012) (same). See also Heinrich v. White, 2012 IL App (2d) 110564, '1[10, 975
N.E.2d 726 (2nd Dist. 2012) (holding that "a request for records not yet created is
invalid"). Further, the request that you made would, at a minimum, require someone to
speak with multiple Assistant State's Attorneys to determine if they recall working on a
criminal case where law enforcement collected evidence or otherwise used a cell site
simulator. This, in essence, requires the type of hand count that the Appellate Court
found to be unduly burdensome in Shehadeh v. Madigan, 2013 ILApp (4th) 120742, 996
N.E.2d 1243 (4th Dist. 2013) (holding that a FOIA request to the Attorney General's
office was unduly burdensome under Section 3(g) ofFOIA). On these legal bases, I am
denying Mr. Martinez' FOIA request.
Even if we could identify the documents that Mr. Martinez' FOIArequest seeks, I
would still decline to produce such documents, as they would be exempt from disclosure
pursuant to Section 7(1)(d)(v) ofFOIA ("Section 7(1)(d)(v)"). Section 7(1)(d)(v) exempts
records in the possession of any public body created by any law enforcement agency for
law enforcement purposes where disclosure would:
disclose unique or specialized investigative techniques other than those
generally used and known or disclose internal documents of correctional
agencies related to detection, observation or investigation of incidents of
crime or misconduct, and disclosure would result in demonstrable harm
to the agency or public body that is the recipient of the request.
See 5 ILCS 14017(1)(d)(v) (2015). Mr. Martinez' request for documents pertaining to law
enforcement's use of cell site simulators in matters where they are investigating
possible drug crimes or possible terrorist acts would certainly reveal "unique or
specialized investigative techniques" used in such investigations. Such a disclosure
could compromise the investigations of those serious and complex crimes. Under
Section 7(l)(d)(v) of FOIA, such documents are exempt from disclosure and, on this
alternative legal basis, I am also denying Mr. Martinez' FOIA request.
Finally, although I have not seen any documents that would be responsive to
your FOIA request, such documents would likely be exempt from disclosure under the
attorney-client, work product, deliberative process or law enforcement investigatory
privileges.
Accordingly, and for the foregoing legal reasons, I respectfully deny Mr. Martinez'
FOIA request. Mr. Martinez has a right to appeal this decision to Sarah Pratt, Public
Access Counselor, Office of the Illinois Attorney General, 500 S. 2nd Street, Springfield,
Illinois 62706, (phone number 1-877 -299-FOIA) or to seek judicial review under Section
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Paul A. Castiglione
Executive Assistant State's Attorney
for Policy
69 West Washington St.
Suite 3200
Chicago, Illinois 60602
(312) 603-1840