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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 STATE’S
ATTORNEY’S 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 STATE’S ATTORNEY’S OFFICE’s 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.

Pursuant to the fundamental philosophy of the American constitutional form of

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.

Restraints on access to information, to the extent permitted by FOIA, are limited

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.

All public records of a public body are presumed to be open to inspection or

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

outweighs the public interest in disclosure. 5 ILCS 140/3.
5.

Under FOIA Section 11(h), “except as to causes the court considers to be of

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.

Defendant COOK COUNTY STATE’S ATTORNEY’S OFFICE has willfully

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.

Plaintiff FREDDY MARTINEZ is the FOIA requester in this case.

8.

Defendant COOK COUNTY STATE’S ATTORNEY’S OFFICE (“CCSAO”) is a

public body located in Cook County, Illinois.
9.

In Nelson v. County of Kendall, 2014 IL 116303, the Illinois Supreme Court

confirmed that state’s attorneys are subject to FOIA, holding that the contrary position of the
Kendall County state’s attorney, supported by CCSAO and other state’s attorneys, “has no

-2-

 support in established principles of statutory construction and is incompatible with the FOIA’s
presumption in favor of disclosure.”
BACKGROUND ON CELL SITE SIMULATORS
10.

There currently exists a variety of equipment commonly known as IMSI catchers,

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

has not fully revealed to the public.

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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.

-3-

 16.

The ACLU, Electronic Privacy Information Center, Electronic Frontier

Foundation, and others have questioned whether local law enforcement are using cell site
simulators in a constitutionally permissible way.
17.

The Chicago Sun-Times, The Chicago Tribune, WBBM, WGN, WBEZ,

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 Department’s
use or suspected use of cell site simulator equipment.
18.

Chicago Police Department has obtained court orders, not based on a showing of

probable cause, purporting to allow to use cell site simulators.

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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.

-4-

 MARTINEZ’S FOIA REQUEST AND COOK COUNTY
STATE’S ATTORNEY’S OFFICE’S REFUSAL TO COMPLY
23.

On December 31, 2014, MARTINEZ made the following FOIA request

(“Request”) to COOK COUNTY STATE’S ATTORNEY’S OFFICE: “For each instance in
which information obtained using a cell site simulator (also known as IMSI catcher or commonly
known as “stingray” equipment) was used in a criminal prosecution, all records showing the
case, the information that was used, the charges, the outcome of the case, how the information
was obtained and by whom, and any court orders authorizing the use of the equipment.”
24.

On January 5, 2015, COOK COUNTY STATE’S ATTORNEY’S OFFICE

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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.

In response, MARTINEZ proposed a process to search for records that would

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 CCSAO’s 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 CCSAO’s 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 CCSAO’s claimed burden concerns and failed to provide any
counterproposal. A true and correct copy of CCSAO’s response is attached as Exhibit C.

-5-

 28.

In its responses to the request, CCSAO failed to address controlling caselaw on

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.

To date, COOK COUNTY STATE’S ATTORNEY’S OFFICE has refused to

produce a single record in response to MARTINEZ’S FOIA request.
30.

The Illinois Attorney General has found on multiple occasions that the CCSAO

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has violated FOIA in other matters.
COUNT I – WILLFUL VIOLATION OF FOIA
31.

The above paragraphs are incorporated by reference.

32.

COOK COUNTY STATE’S ATTORNEY’S OFFICE is a public body under

33.

The records sought in MARTINEZ’s original and modified FOIA requests are

FOIA.

non-exempt public records of COOK COUNTY STATE’S ATTORNEY’S OFFICE and would
not be unduly burdensome to produce.
34.

COOK COUNTY STATE’S ATTORNEY’S OFFICE has violated FOIA by

refusing to produce the requested records.
35.

COOK COUNTY STATE’S ATTORNEY’S OFFICE’S violation was willful and

intentional and in bad faith.
WHEREFORE, MARTINEZ asks that the Court:
i.

in accordance with FOIA Section 11(f), afford this case precedence on the Court’s
docket except as to causes the Court considers to be of greater importance, assign
-6-

 this case for hearing and trial at the earliest practicable date, and expedite this
case in every way;
ii.

declare that COOK COUNTY STATE’S ATTORNEY’S OFFICE has violated
FOIA;

iii.

order COOK COUNTY STATE’S ATTORNEY’S OFFICE to produce the
requested records under FOIA;

iv.

enjoin COOK COUNTY STATE’S ATTORNEY’S OFFICE from withholding
non-exempt public records under FOIA;
award MARTINEZ reasonable attorneys’ fees and costs; and

vi.

award such other relief the Court considers appropriate.

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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-

 OFFICE OF THE STATE'S ATTORNEY
COOK COUNTY, ILLINOIS

69 West Washington St.
Suite 3200

ANITA ALVAREZ
STATE'S ATTORNEY

CHICAGO, ILLINOIS 60602
PAULA. CASTIGLIONE
EXECUTIVE ASSISTANT STATE'S ATTORNEY
FOR POLICY

WRITER'S DIRECT LINE:
(312) 603-1840

WRITER'S E-MAIL ADDRESS:
PAUL.CASTIGLIONE@COOKCOUNTYIL.GOV

WRITER'S DIRECT FAX:

(312) 603-2655

January 5, 2015

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VIA ELECTRONIC MAIL AND U.S. MAIL
Mr. Matthew V. Topic
Loevy & Loevy
312 North May Street
Suite 100
Chicago, Illinois 60607-1237
Re:

FOIA request dated 12/31/14

Dear Mr. Topic:
I have received the FOIA request that you sent to the Cook County State's
Attorney's Office (the "SAO") by e-mail on December 31, 2014.
You asked for the following documents:

For each instance in which information obtained using a cell site
simulator (also known as IMSI catcher or commonly known as "stingray"
equipment) was used in a criminal prosecution, all records showing the
case, the information that was used, the charges, the outcome of the case,
how the information was obtained and by whom, and any court orders
authorizing the use of the equipment.
I have made inquiries senior attorneys from our Criminal Prosecutions and Narcotics
Bureaus and have determined that the SAO has no way of knowing the identity of
criminal cases where a cell site simulator was used to obtain evidence in those cases, if
any such cases exist. In other words, the SAO has no list of cases where "stingray"
equipment, an IMSI catcher or any other cell site simulator was used to obtain
information and/or evidence.
As I am sure you know, the FOIA statute 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
Exhibit A

 Mr. Matthew V. Topic
January 5, 2015
Page 2

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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In addition, doing a hand count over the hundreds of thousands of pending
criminal cases to determine whether "stingray" equipment, an IMSI catcher or any
other cell site simulator was used to obtain information and/or evidence would be
unduly burdensome under Section 3(g) of FOIA. See, e.g., Shehadeh v. Madigan, 2013
IL App (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) of FOIA). In
Shehadeh, the court held that the FOIA request was unduly burdensome because:
a search of the Attorney General's records retrieved over 9,200 potentially
responsive files and complying with plaintiff's request would be unduly
burdensome because staff would have to go through each file by hand to
determine which records were responsive and then review and redact
information from those responsive records to protect against the release
of exempt information.

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..

 OFFICE OF THE STATE'S ATTORNEY
COOK COUNTY, ILLINOIS

69 West Washington St.
Suite 3200
CHICAGO, ILLINOIS 60602

ANITA ALVAREZ
STATE'S ATTORNEY
PAULA. CASTIGLIONE
EXECUTIVE ASSISTANT STATE'S ATTORNEY
FOR POLICY

WRITER'S DIRECT LINE:

(312) 603-1840

WRITER'S E-MAIL ADDRESS:
PAUL.CASTIGLIONE®COOKCOUNTYIL.GOV

WRITER'S DIRECT FAX:

(312) 603-2655

January 6, 2015

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VIA ELECTRONIC MAIL AND U.S. MAIL

Mr. Matthew V. Topic
Loevy & Loevy
312 North May Street
Suite 100
Chicago, Illinois 60607-1237
Re:

FOIA request dated 115/15

Dear Mr. Topic:
I received the FOIA request that you sent to the Cook County State's Attorney's
Office (the "SAO") by e-mail on December 31, 2014 in which you asked for the following
documents pursuant to the Illinois Freedom of Information Act ("FOIA"):

For each instance in which information obtained using a cell site
simulator (also known as IMSI catcher or commonly known as "stingray"
equipment) was used in a criminal prosecution, all records showing the
case, the information that was used, the charges, the outcome of the case,
how the information was obtained and by whom, and any court orders
authorizing the use of the equipment.
On January 5, 2014, I sent you a response denying this request on the grounds that it
was unduly burdensome under Section 3(g) of FOIA ("Section 3(g)")- A copy of my
January 5, 2014letter to you is attached.
On January 5, 2014, you sent me an e-mail proposing that the SAO take the
following steps:

Exhibit B

 Mr. Matthew V. Topic
January 6, 2015
Page 2

•

send an e-mail to every attorney in the SAO and ask each to
identify, based on memory, any cases in which evidence was
obtained using a stingray.

•

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.

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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).

 Mr. Matthew V. Topic
January 6, 2015
Page 3

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

~

 OFFICE OF THE STATE'S ATTORNEY
COOK COUNTY, ILLINOIS
69 West Washington St.
Suite 3200
CHICAGO, ILLINOIS 60602

ANITA ALVAREZ
STATE'S ATTORNEY
PAULA. CASTIGLIONE
EXECUTIVE ASSISTANT STATE'S ATTORNEY
FOR POLICY

WRITER'S DIRECT LINE:
(312) 603-1840

WRITER'S E·MAIL ADDRESS:

WRITER'S DIRECT FAX:

PATJL.CASTIGLIONE@COOKCOUNTYIL.GOV

(312) 603-2655

January 27, 2015

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VIA ELECTRONIC MAIL AND U.S. MAIL
Mr. Matthew V. Topic
Loevy & Loevy
312 North May Street
Suite 100
Chicago, Illinois 60607-1237
Re:

FOIA request of Freddy Martinez dated 12/31/14

Dear Mr. Topic:
I received the FOIA request of Freddy Martinez that you sent to the Cook County
State's Attorney's Office (the "SAO") by e-mail on December 31, 2014 in which you
asked for the following documents pursuant to the Illinois Freedom of Information Act
("FOIA"):

For each instance in which information obtained using a cell site
simulator (also known as IMSI catcher or commonly known as "stingray"
equipment) was used in a criminal prosecution, all records showing the
case, the information that was used, the charges, the outcome of the case,
how the information was obtained and by whom, and any court orders
authorizing the use of the equipment.
On January 5, 2014, I sent you a response denying this request on the grounds that it
was unduly burdensome under Section 3(g) of FOIA ("Section 3(g)"). On Thursday,
January 8, 2015, we subsequently spoke and you agreed to narrow your FOIA request
to two types of criminal prosecutions: terrorism cases and narcotics cases. We further
agreed to have a telephone conference on Tuesday, January 27, 2015, to discuss the
status and feasibility of the narrowed FOIA requests.
Based upon my research and conversations that I have had with senior attorneys
in our Special Prosecutions and Narcotics Bureaus, the SAO does not have the
documents that you request regarding the use of cell site simulators in narcotics cases
Exhibit C

 Mr. Matthew V. Topic
January 27, 2015
Page 2

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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

 Mr. Matthew V. Topic
January 27, 2015
Page 3

11 ofFOIA, 5 ILCS 140/11 (2015).
Sincerely,

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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