1 2 3 4 5 6 Kelly A. Aviles (SBN 257168) LAW OFFICES OF KELLY AVILES 1502 Foothill Blvd., #103-140 La Verne, California 91750 Telephone: (909) 991-7560 Facsimile: (909) 991-7594 Email: kaviles@opengovlaw.com Attorneys for Petitioner FIRST AMENDMENT COALITION 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN DIEGO 10 11 12 13 14 15 16 17 18 FIRST AMENDMENT COALITION, a non-profit organization, ) ) ) Petitioner/Plaintiff, ) ) v. ) ) SAN DIEGO POLICE DEPARTMENT and ) CITY OF SAN DIEGO ) ) Respondents/Defendants. ) ) Case No.: VERIFIED PETITION FOR WRIT OF MANDATE ORDERING COMPLIANCE WITH THE CALIFORNIA PUBLIC RECORDS ACT; COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF; EXHIBITS A THROUGH D. [Cal. Gov’t. Code Section 6250 et seq.] 19 20 Petitioner/Plaintiff FIRST AMENDMENT COALITION seeks a writ of mandate, 21 injunctive and declaratory relief under California Code of Civil Procedure sections 1085 22 and 1060 and Government Code sections 6258 and 6259. In this verified Petition, 23 Petitioner alleges as follows: 24 INTRODUCTION 25 26 1. The surveillance of U.S. citizens is a matter of great public concern and 27 has been an issue of national debate. In this Petition, Petitioner FIRST AMENDMENT 28 COALITION asks this Court to issue a writ of mandate, ordering the CITY OF SAN -1VERIFIED PETITION FOR WRIT OF MANDATE 1 DIEGO and/or the SAN DIEGO POLICE DEPARTMENT to disclose documents 2 containing information about their possession and use of International Mobile 3 Subscriber Identity Catchers (IMSI-catcher). 4 5 6 2. Stingray is the brand name for IMSI-catcher devices manufactured by Harris Corporation. 3. Cellular service providers provide wireless cell phone service through a 7 series of cell sites or towers. Cell phones in the area then transmit data to the cell 8 tower, including the cellphone’s unique numeric identifier (the ISMI number), as well 9 as the cell site code, which identifies its location. 10 4. Stingrays work by emulating a cellphone tower, forcing cell phones to 11 register their location and send identifying information to the Stingray, instead of the 12 real cell phone towers in the area. These devices are capable of locating a cell phone 13 signal with extraordinary precision, but do so in an indiscriminate manner, scooping up 14 information from all cell phones, smartphones, and other devices that use cell or mobile 15 technology within the Stingray’s vicinity. Stingrays can track cell phones whenever a 16 phone in range is turned on, not just when the phone is making or receiving calls. 17 5. Serious legal questions have been raised about the legality of Stingrays 18 because they capture information from all cell phones in the vicinity, not just 19 information from the cell phone of the target of an investigation. 20 6. Petitioner FIRST AMENDMENT COALITION has become concerned 21 about the use, and potential abuse, of this technology as it has proliferated in recent 22 years from a surveillance device used mainly by the FBI and a handful of federal 23 agencies to a device used by local police departments across the country. Petitioner has 24 assisted multiple journalists and news organizations whose reporting about police use 25 of Stingrays has been frustrated by denial of public records requests. In October 2014, 26 Petitioner became aware that the San Diego Police Department had denied virtually all 27 of a journalist’s recent request for public records concerning the Department’s use of 28 the Stingray. Believing that the Department’s sweeping exemption claims were legally -2VERIFIED PETITION FOR WRIT OF MANDATE 1 indefensible, Petitioner proceeded to file its own public records request—the request at 2 issue in this case—with the San Diego Police Department, seeking essentially the same 3 records that had been denied the journalist. 4 7. In response to the Request, the SAN DIEGO POLICE DEPARTMENT 5 provided a single document, a heavily redacted invoice for the purchase of Stingray. The 6 SAN DIEGO POLICE DEPARTMENT said it was withholding the redacted portion of 7 the invoice, but declined to say whether it was withholding additional records, 8 responsive to the request. 9 10 8. compel the disclosure of this information. 11 THE PARTIES 12 13 Petitioner FIRST AMENDMENT COALITION now brings this action to 9. Petitioner/Plaintiff FIRST AMENDMENT COALITION (“Petitioner” or 14 “FAC”) is a nonprofit organization (incorporated under California’s non-profit law and 15 tax exempt under 501(c)(3) of the Internal Revenue Code) that is dedicated to freedom 16 of expression, resisting censorship of all kinds, and to promotion of the “people’s right 17 to know” about their government so that they may hold it accountable. 18 supported mainly by grants from foundations and contributions from individuals, but 19 receives some of its funding from for-profit news media, law firms organized as 20 corporations, and other for-profit companies. 21 10. FAC is Respondent/Defendant CITY OF SAN DIEGO (“City”) and the SAN 22 DIEGO POLICE DEPARTMENT (“Police Department”) (collectively “Respondents”), 23 are local agencies, subject to the California Public Records Act, pursuant to 24 Government Code section 6252(a). The City’s main office is at 202 “C” Street, San 25 Diego, California, 92101. The Police Department headquarters are located at 1401 26 Broadway, San Diego, California, 92101. 27 28 JURISDICTION AND VENUE -3VERIFIED PETITION FOR WRIT OF MANDATE 11. 1 2 This Court has jurisdiction over this matter pursuant to Code of Civil Procedure sections 1085 and 1060 and Government Code sections 6258 and 6259. 12. 3 Venue is proper in this court as Respondents are located within the 4 County of San Diego and the acts and events giving rise to the claims occurred, in part, 5 in the County of San Diego. 6 FACTS SUPPORTING THE CAUSE OF ACTION 7 13. 8 On October 8, 2014, Peter Scheer, Executive Director of FAC, submitted a 9 CPRA Request (the “Request”) to Jericho Salvador, who acts as CPRA Liaison for the 10 Police Department. A true and correct copy of the Request is attached hereto as 11 Exhibit A and incorporated herein by reference. 1 The Request sought documents 12 related to the Police Department’s purchase and use of cellular phone surveillance 13 devices, known as IMSI-catchers or Stingrays. Specifically, FAC’s request sought: 14 1) Records pertaining to the police department’s possession and use of a cellular phone surveillance device manufactured by Harris Corp. and referred to as an IMSI-catcher (International Mobile Subscriber Identity) or Stingray. These records should include: 15 16 17 (a) emails, purchasing orders, receipts, grant applications and training materials; and [sic] 18 b) documents sufficient to show guidelines, procedures, or restrictions on the San Diego Police Department’s use of the device; 19 20 c) for the past six months, copies of any declarations/affidavits, motions, forms or other legal documents submitted to a judge or magistrate to obtain judicial authorization for use of the device. 21 22 23 24 25 26 27 28 14. On October 14, 2014, Mr. Salvador responded to the Request. Attached hereto as Exhibit B is a true and correct copy of the Response. Along with the Response, the Police Department produced one document, Purchase Order 1 All Exhibits are true and correct copies and are incorporated into this petition as if set forth in full. -4VERIFIED PETITION FOR WRIT OF MANDATE 1 4500038491, a true and correct copy of which is attached hereto as Exhibit C. The 2 purchase order was redacted, which Mr. Salvador claimed was necessary to “protect 3 information that would reveal security or intelligence information, and exempt from 4 disclosure pursuant to Section 6254(f).” 5 information is exempt from disclosure pursuant to Section 6254(k) and the 6 department claims confidentiality per Evidence Code section 1040.” Finally, he denied 7 the remainder of the request, stating that “even assuming such documents exist, they 8 would be exempt from public disclosure under the same statutes cited above.” 9 15. Alternatively, he claimed that “the Mr. Scheer responded to Mr. Salvador the same day, asking that they 10 “state which of the other requested records do, in fact, exist” because FAC has “a right 11 to know whether records responsive to [its] request have been withheld.” Mr. Scheer 12 also requested that Mr. Salvador provide the factual basis for its claim of 13 confidentiality pursuant to Evidence Code section 1040, including the language of any 14 confidentiality agreement with any third party. 15 Scheer’s October 14, 2014 response to Mr. Salvador is attached hereto as Exhibit D. 16 17 16. Mr. Scheer never received any response from Mr. Salvador or on behalf of the Police Department to his October 14th email. 18 19 20 21 22 23 24 A true and correct copy of Mr. CAUSE OF ACTION FOR VIOLATIONS OF THE CALIFORNIA PUBLIC RECORDS ACT (RELIEF PURSUANT TO GOV. CODE § 6258; CODE CIV. PROC. §§ 1060, 1085) 17. Petitioner hereby realleges and incorporates herein by this reference Paragraphs 1 thorough 16 of this Petition as though set forth herein in full. 18. Government Code section 6252(e) defines "public records" as “any 25 writing containing information relating to the conduct of the public's business 26 prepared, owned, used, or retained by any state or local agency regardless of physical 27 form or characteristics…. 28 -5VERIFIED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 19. Government Code section 6253, sets forth, in pertinent part, a public agency’s duties to respond to a CPRA Request: (c) Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefore. In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available. …¶… (d) Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. The notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial. 16 17 20. Government Code section 6255 requires that Respondents “justify 18 withholding any record by demonstrating that the record in question is exempt under 19 express provisions of this chapter or that on the facts of the particular case the public 20 interest served by not disclosing the record clearly outweighs the public interest served 21 by disclosure of the record.” 22 21. The documents requested by FAC relate to the conduct of the public’s 23 business and were prepared, owned, used or retained by the Police Department. 24 Therefore, the documents are public records pursuant to Government Code section 25 6252(e). 26 27 22. The Police Department has claimed that the responsive public records, or portions thereof, are exempt from disclosure because they contain information which 28 -6VERIFIED PETITION FOR WRIT OF MANDATE 1 would reveal security or intelligence information, and are exempt pursuant to 2 Government Code sections 6254(f), 6254(k), and Evidence Code section 1040. 3 23. Petitioner is informed and believes, and on that basis, alleges that 4 additional documents exist that are responsive to its Request and do not meet the 5 requirements set forth in relevant statutes or case law for assertion of any of the 6 claimed exemptions. 7 24. Petitioner is informed and believes, and on that basis alleges that the 8 information redacted in Purchase Order 4500038491 does not meet the requirements 9 set forth in relevant statutes or case law for assertion of any of the claimed exemptions. 10 25. Petitioner alleges that Respondents failed to comply with the CPRA by 11 failing and refusing to respond to its Request as required by Government Code section 12 6253. Namely, Petitioner alleges that Respondents violated the CPRA by failing and 13 refusing to notify Petitioner whether it possesses additional responsive documents, and, 14 if so, the factual basis for its claimed exemptions concerning such documents. 15 26. The People of California have elevated the right to open government to 16 one protected by their State Constitution. The California Constitution, Article 1, Section 17 3, Paragraphs (a) - (b) state: 18 19 The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good. 20 21 22 23 24 25 The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access. 26 27 28 27. Petitioner has exhausted its administrative remedies. Petitioner has requested copies of unredacted, disclosable public records from Respondents, but -7VERIFIED PETITION FOR WRIT OF MANDATE 1 Respondents have failed to provide access to those public records. The only plain, 2 speedy, and adequate remedy left to Petitioner is the relief provided by Government 3 Code § 6258. 4 28. 5 7 Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter.” 8 29. 9 Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow. 6 10 11 12 13 14 Government Code § 6258 provides: Government Code § 6259 provides: 15 30. 16 Any person interested … who desires a declaration of his or her rights or duties with respect to another … may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time….” 17 18 19 20 21 22 23 24 25 26 27 28 31. Code of Civil Procedure § 1060 provides: Petitioner has demonstrated that an actual controversy exists between the parties regarding Respondents’ responsibility to disclose records under the CPRA. 32. Respondents have a ministerial duty to perform according to the laws of State of California, including the CPRA. 33. Petitioner has an interest in having the laws executed and public duties enforced and, therefore, has a beneficial interest in the outcome of the proceedings. -8VERIFIED PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 34. Petitioner has a clear, present, and legal right to Respondents’ performance of their ministerial duties, as required by the CPRA. 35. Respondents have a present legal duty and present ability to perform its ministerial duties, as required by the CPRA. 36. Respondents have failed to perform their ministerial duties as required by the CPRA. 37. Through this action, Petitioner seeks no greater relief than would be afforded to any other member of the public. 38. Therefore, this Court should find that Respondents violated the CPRA by 10 failing and refusing to notify Petitioner whether additional documents responsive to 11 the Request exist and identify the factual basis underlying the claimed exemptions. 12 Additionally, Petitioner requests that this Court order Respondents to identify all 13 responsive records that are being withheld, and to release both an unredacted version 14 of the Invoice No. 4500038491 and copies of all responsive records. 15 16 17 18 WHEREFORE, PETITIONER PRAYS AS FOLLOWS: 1. That after a trial of this action, to be held on notice, this Court should issue a declaration that: 19 (a) The records requested by Petitioner are public records; 20 (b) The claimed exemptions are not applicable to the public records requested by Petitioner; and, 21 22 (c) Respondents CITY OF SAN DIEGO and/or the SAN DIEGO 23 POLICE DEPARTMENT violated the California Public Records 24 Act by: 25 26 (i) refusing to release unredacted, responsive public records requested by Petitioner; and, 27 28 -9VERIFIED PETITION FOR WRIT OF MANDATE 1 (ii) failing to notify Petitioner of whether responsive records 2 exist and identify the factual basis for the withholding of 3 any responsive records. 4 5 2. Issue a writ of mandate ordering Respondents CITY OF SAN DIEGO 6 and/ or the SAN DIEGO POLICE DEPARTMENT to perform as required by the 7 California Public Records Act by releasing both an unredacted copy of Invoice No. 8 4500038491 and all responsive public records; and, 9 10 3. That Petitioner/Plaintiff FIRST AMENDMENT COALITION recover 11 attorneys' fees incurred in this action pursuant to Government Code Section 6259 12 and/ or Code of Civil Procedure Section 102i.5; 13 14 4. For an award of costs incurred in this action; and, 5. For such other and further relief as the court deems just and proper. 15 16 17 18 DATED: December 12, 2014 LAW OFFICES OF KELLY A. AVILES .. 19 20 21 for Petitioner MENT COALITION 22 23 24 ., 25 26 27 28 -10- VERIFIED PETITION FOR WRIT OF MANDATE I (am. 44a and 2015.5; 1 STATE 0F CUUNTY OF E, Petal? Scheer, ?le Executiva Director far AMENDMENF I have mad ma fhregcring Wi?i THE :PetitinnarfPlaintiif in {13% abavea-enti?aci actinn 0r preceeding. PETITIUN FOR CALEFURNEA PLEEMC COMPLAIET FOR AND, EXHIBITS A THRQUGH i) and has? the there'e? and are {herein Si?il??d again my infarmaiim and balicf. and as it: those mamas-.1 believe it be true, This Veri?catmn was exam-22m cm December I M14, at San Rafaei, Califamia. I declare un?er penaity 0f perjury under {he ans of Eh: 5mm of Calitbmia that ?113 5% Perm Scheer - faregaing is true a?d corra?i', VERIFICATION ce?ify that the same 13111123 31% cm?reci at" my awn knewi?dge. ?xaept as; in these ma?ars whiah ?a wm?f?z?wxwu .. - 1: a- .1 Exhibit A From: Peter Scheer Date: Wed, Oct 8, 2014 at 1:52 PM Subject: Public Records Request / San Diego PD To: jsalvador@pd.sandiego.gov Jericho Salvador, Officer Chiefs’ Office/CPRA Liaison San Diego Police Department 1401 Broadway, San Diego CA 92101 (619) 531-2180 jsalvador@pd.sandiego.gov This is a public records request pursuant to the Public Records Act, Gov. Code sec. 6250 et seq., and Article 1, sec. 3(b), of the California Constitution. It is submitted on behalf of the First Amendment Coalition, a nonprofit legal organization with offices in San Rafael, CA. We request: 1) Records pertaining to the police department’s possession and use of a cellular phone surveillance device manufactured by Harris Corp. and referred to as an IMSI-catcher (International Mobile Subscriber Identity) or Stingray. These records should include: a) emails, purchasing orders, receipts, grant applications and training materials; and b) documents sufficient to show guidelines, procedures, or restrictions on the San Diego Police Department’s use of the device; c) for the past six months, copies of any declarations/affidavits, motions, forms or other legal documents submitted to a judge or magistrate to obtain judicial authorization for use of the device. Please note that the First Amendment Coalition is aware that the police department recently denied (with the exception of one heavily redacted purchase order) a similar public records request submitted by Jessica Glenza, a reporter for the Guardian news organization. We believe that denial was improper because the claimed exemptions do not apply. If you would like to discuss this records request, please give me a call. Also, please obtain our consent to any copying costs, chargeable to FAC, that exceed $50. Thank you for your consideration of this request. Sincerely, Peter Scheer ------------------------------------------------------------------------------Peter Scheer Executive Director First Amendment Coalition pscheer@firstamendmentcoalition.org 415.886.7081 534 4th St. #B San Rafael, CA 94901 www.firstamendmentcoalition.org Exhibit From: Salvador, Jericho Date: Tue, Oct 14, 2014 at 3:45 PM Subject: Public Records Request To: Peter Scheer , "pscheer@gmail.com" Dear Mr. Scheer, I am responding to your public records request to the San Diego Police Department dated October 8, 2014. Attached is a copy of one responsive document, Purchase Order 4500038491. The document has been redacted to protect information that would reveal security or intelligence information, and is exempt from disclosure pursuant to California Government Code section 6254(f). Alternatively, the information is exempt from disclosure pursuant to Section 6254(k) and the Department claims confidentiality per Evidence Code section 1040. As to the other items contained in your request, even assuming such documents exist, they would be exempt from public disclosure under the same statutes cited above. Sincerely, Jericho Salvador, Officer Chiefs' Office/ CPRA Liaison (619) 531-2180 Exhibit City of San Diego PURCHASE ORDER Ship To: Center ID: OHS2 OFFICE OF HOMELAND SECURITY SEE NOTES SAN DIEGO CA 92101-4639 I PO No. j 4500038491 Biii To: Date: 12/12/2012 OFFICE OF HOMELAND SECURITY 1010 SECOND AVENUE, STE ·1500 SAN DIEGO CA 92101-4906 Billing Contact: LINDA KOOZIN Page 1 of 2 Telephone: Terms: within 30 days Due net Vendor: Harris Corporation 407 John Rodes Blv.d Melbourne FL 32934-8059 Dellvery'Terms: Destination Deliver on or before: Buyer: Vendor ID: 10022850 Phone: Darlene Montijo 321-309-7459 Telephone: 619·236-6248 Item ID/Description Line# Quantify/UM Unit Price USO 2 Extended Price _1uso USD • ~ l I USD USO 1 4 USO ) USD 5 USO USD 3 ........~- ~----------- Biii to: Olly of San Diego • 1010 2nd Avenue, Suite 1 San Diego, CA 92101 ATTN: Gary Lane SEE LAST PAGE FOR TOTAL Notes: The Terms and Conditions of this Purchase Order are available at http://sandlego.gov/purchaslng/' IMPORTANTI 1 To ensure promp~ pav. ments, PO# must appear on Fl 1 stllpments and 1r:wolcel1; and all nvo cell must be directed to Bi/Jing Contact person at Biii-To address listed above PA 2555a (Rev, 9-02) Clly of San Diego Purchasing Division 1200 Third Avo, Ste, 200 San Diego CA 92101-4196 City of San Diego PURCHASE ORDER PO No. j 450003849{] Center ID: OHS2 Ship To: OFFICE OF HOMELAND SECURITY SEE NOTES SAN DIEGO CA 92101-4639 Bill To: Date: 12/12/2012· OFFICE OF HOMELAND SECURITY 1010 SECOND AVENUE, STE 1500 SAN DIEGO CA 92101-4906 Biiiing Contact: LINDA KOOZIN Paga2of2 Telephone: Terms: within 30 days Due net Vendor: Harris Corporation 407 Jo.hn Rodes Blvd Melbourne FL 32934-8059 Delivery Terms: Destination Deliver on or before: Buyer: VendorlD: 10022850 Phone: Darlene Montijo 321-309-7459 Telephone: 619-236-6248 Line# Item ID/Description Unit Price Quantity/UM Extended Price Notes: Notes: The Terms and Conditions of this Purchase Order are available at http://sandlego.gov/purchaslhg/' Line Item Total $ Tax $ 33,000.00 0.00 $ 33,000.00 PO Total IMPORTANTI To ensure promp~ pC1v.ments, PO# must appear on a I snjpments and 11:woice$; an~ all nvrnces must be directed to Billing Contact person at Biii- To address listed above PA 2555a (Rev. 9-02) Clly of San Diego Purchasing Division 1200 Third Ave. Ste. 200 San Diego CA 92101-4195 Exhibit From: Peter Scheer Date: Tue, Oct 14, 2014 at 5:11 PM Subject: Re: Public Records Request To: "Salvador, Jericho" Mr. Salvador, Thank you for your Oct. 14 response to my public records request. Your response states the grounds for redactions to the purchase order, the sole produced document. Your letter then states: "As to the other items contained in your request, even assuming such documents exist, they would be exempt from public disclosure under the same statutes cited above." Please state which of the other requested records do, in fact, exist. We have a right to know whether records responsive to our PRA request have been withheld. Your Oct. 14 response relies (in part) on Evidence Code section 1040 for redactions to the purchase order. Please describe the factual predicate or basis for this claim. If it is a confidentiality agreement with a third-party, please provide us with the language of the confidentiality clause or provision. Thank you for your cooperation. Sincerely, Peter Scheer ------------------------------------------------------------------------------Peter Scheer Executive Director First Amendment Coalition pscheer@firstamendmentcoalition.org 415.886.7081 534 4th St. #B San Rafael, CA 94901 www.firstamendmentcoalition.org