AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA Michael Risher, SBN 191627 mrisher@aclunc.com Linda Lye, SBN 215584 llye@aclunc.com Nicole Ozer, SBN 228643 nozer@acIunc.com Matthew Cagle, SBN 286101 mcagle@aclunc.com 39 Drumm Street San Francisco, CA 94111 Telephone: (415)621-2493 8 Facsimile: (415)255-1478 Syperios' Court Of 9 LATHAM & WATKINS LLP Sadik Huseny, SBN 224659 10 sadik.huseny@lw.com Hanno Kaiser, SBN 262249 11 hanno.kaiser@Iw.com Kyle Virgien, SBN 278747 12 kyle.virgien@lw.com 505 Montgomery Street, Suite 2000 13 San Francisco, CA, 94111 Telephone: (415)391-0600 14 Facsimile: (415) 395-8095 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA Peter Bibring, SBN 223981 pbibring@aclusocal.org Jessica Price, SBN 264053 jprice@aclusocal.org 1313 West Eighth Street Los Angeles, Califomia 90017 Telephone: (213) 977-9500 Facsimile: (213)977-5297 15 Lujing Liu, SBN 300769 gavin.liu@lw.com 16 140 Scott Drive Menlo Park, CA, 94025 17 Telephone: (650) 463-4600 Facsimile: (650) 395-2600 18 Attorneys for Petitioner 19 SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO 20 AMERICAN CIVIL LIBERTIES UNION OF 21 NORTHERN CALIFORNIA, a non-profit corporation CASE NO. 22 VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE ORDERING THE SACRAMENTO COUNTY SHERIFF'S DEPARTMENT TO COMPLY WITH ITS DUTIES UNDER THE CALIFORNIA PUBLIC RECORDS ACT Petitioner, 23 24 SACRAMENTO COUNTY SHERIFF'S DEPARTMENT 25 Respondent 26 27 28 [Cal. Gov. Code §§ 6250-6270] INTRODUCTION 2 1. This case concerns the public's right to access basic information about how their local 3 police use surveillance—what devices and technologies police use to gather information on residents, 4 what policies govern their use of a particular surveillance technology, what kinds of crimes justify the 5 use of a given surveillance device, what authorization the police get from courts, and what protections 6 (if any) police have put in place to guard privacy and civil liberties. 7 2. IMS! catchers—commonly known by the brand name "Stingrays," for one such device— 8 are highly invasive surveillance devices. They mimic cell phone towers and force all cell phones within 9 their range to register infonnation regarding the phones' location, data, and content with the IMSI 10 catcher. IMSI catchers allow law enforcement to indiscriminately track the cell phones of everyone who 11 happens to be within the device's significant range, including suspects and bystanders. These devices 12 are capable of not only gathering the phone numbers dialed or called by a cell phone, but can track 13 individuals' locations even when they are inside their homes. Using IMSI catcher technology, law14 enforcement agencies can, without the assistance of wireless carriers, send signals to cell phones— 15 whether they are located in individuals' pockets, cars, or residences—and obtain information from 16 those phones regardless of who the cell phone owner is, what data is on the phone, or whether the cell 17 phone owner intends for the phones to be on, off, or transmitting any data whatsoever. 18 3. Law-enforcement agencies increasingly use this extraordinarily invasive technology in 19 routine cases, a practice that has grave civil-liberties consequences. Moreover, local agencies have been 20 unwilling to disclose even basic information about their use of these devices—information that would 21 allow the public to understand these consequences and the extent and ramifications of the government's 22 invasion of their privacy. 23 4. In May of 2014, the American Civil Liberties Union of Northern California ("ACLU- 24 NC") sent the Sacramento County Sheriffs Department ("Sheriffs Department") a request for 25 documents concerning the Sheriffs Department's use of IMSI catcher technology under the California 26 Public Records Act ("CPRA"). 27 5. The Sheriffs Department improperly withheld most of the documents the ACLU-NC 28 1 VERIFIED PETITION FOR WRIT OF MANDATE 1 requested. By doing so, the Sheriffs Department violated established law. 2 6. In adopting the CPRA, the Califomia legislature declared that "access to information 3 conceming the conduct of the people's business is a fundamental and necessary right of every person in 4 this state." Cal. Gov. Code § 6250. This principle of transparency has also been enshrined in Section 5 3(b) of Article 1 of the state's constitution. The records the ACLU-NC seeks in this action lie at the 6 core of this statutory and constitutional purpose: the people have the right to know the circumstances 7 under which their govemment invades their privacy in their name. By this petition and pursuant to 8 Califomia Govemment Code §§ 6250-6270, the ACLU-NC now seeks a peremptory writ of mandate to 9 compel the Sheriffs Department to produce documents in compliance with the CPRA. THE PARTIES 10 11 7. Petitioner the ACLU-NC is a non-profit organization under the laws of the state of 12 California, and is an affdiate of the American Civil Liberties Union ("ACLU"), a national organization 13 of 500,000 members dedicated to the principles of liberty and equality embodied in both the United 14 States and Califomia Constitutions and our nations' civil rights laws. Both the ACLU-NC and the 15 ACLU have long been concerned about the impact of new technologies on the constitutional protections 16 for privacy. See, e.g.. United States v. Jones, 565 U.S. , 132 S.Ct. 945 (2012) (amicus curiae in case 17 holding that police officers' warrantless placement of GPS device on car to track its location violated 18 Fourth Amendment); City of Ontario v. Quon, 560 U.S. 746 (2010) (amicus curiae in case addressing 19 police officers' expectation of privacy in messages on department-issued pagers). As part of its 20 advocacy, the ACLU-NC routinely uses public-records laws to gather information about the policies and 21 practices of local, state, and federal governments, in order to compile information for publication in 22 reports published in hard copy and distributed electronically through the ACLU-NC's website, in amicus 23 briefs, and through the media. The ACLU-NC therefore has a strong interest in the outcome of these 24 proceedings and in the Sheriffs Department's performance of its legal duties. 25 8. The ACLU-NC is a person and a member ofthe public with the right under the CPRA to 26 inspect public records and to seek relief in a court of competent jurisdicdon to enforce that right. Cal. 27 Gov. Code §§ 6252(b) and (c), 6253, 6258, 6259. 28 VERIFIED PETITION FOR WRIT OF MANDATE 9. Respondent the Sacramento County Sheriffs Department is located in Sacramento 2 County, California. The Sheriffs Department is a local public agency within the meaning of the CPRA. 3 Cal. Gov. Code § 6252(d). JURISDICTION AND VENUE 4 5 10. This Court has jurisdiction under Califomia Govemment Code §§ 6258-6259 and Article 6 6, § 10 of the Califomia Constitution. 7 11. Venue is proper in this Court under Califomia Code of Civil Procedure § 394 because the 8 Sheriffs Department is a local agency situated in Sacramento County. Venue is additionally proper in 9 this Court under California Code of Civil Procedure § 393 because the acts and omissions forming the 10 basis of the cause of action occurred in Sacramento County and the Sheriffs Department is a public II officer. The records in question, or some portion of them, are situated in Sacramento County. Cal. Gov. 12 Code § 6259; Cal. Code Civ. Proc. § 401(1). 13 14 THE CALIFORNIA PUBLIC RECORDS ACT 12. Under the CPRA, upon request, any public agency must make publicly available for 15 inspection and copying any record that it prepares, owns, uses, or retains that is not subject to the 16 CPRA's statutory exemptions to disclosure. Cal. Gov. Code § 6253. 17 13. Before withholding any record responsive to a valid request under the CPRA, the agency 18 must "demonstrat[e] that the record in question is exempt under [the CPRA's] express provisions... or 19 that on the facts of the particular case the public interest served by not disclosing the record clearly 20 outweighs the public interest served by disclosure of the record." Cal. Gov. Code § 6255. 21 14. Any person may institute proceedings by verified petition for a writ of mandate to 22 enforce her right to inspect or receive a copy of any public record or class of public records. Cal. Gov. 23 Code §§ 6258, 6259. 24 15. "The court shall decide the case after examining the record in camera, if permitted by 25 subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument 26 and additional evidence as the court may allow." Cal. Gov. Code § 6259(a). "If the court finds that the 27 failure to disclose is not justified, it shall order the public official to make the record public." Cal. Gov. 28 VERIFIED PETITION FOR WRIT OF MANDATE Code § 6259(b). 2 16. The court must award court costs and reasonable attorney fees to a prevailing petitioner, 3 to be paid by the agency from which the petitioner requested the records. Cal. Gov. Code § 6259(d). THE CALIFORNIA CONSTITUTION 4 5 17. Section 3(b) of Article 1 of California's constitution entrenches and venerates the 6 public's right to access information as set forth in the CPRA. There is no ambiguity: "[t]he people have 7 the right of access to information concerning the conduct ofthe people's business, and, therefore, the 8 meetings of public bodies and the writings of public officials and agencies shall be open to public 9 scrutiny." Cal. Const. Art. 1, § 3(b)(1). Further, the Califomia Constitution instructs that a CPRA 10 provision must "be broadly construed if it furthers the people's right of access, and narrowly construed if 11 it limits the right of access." See Cal. Const. Art. I, § 3(b)(2). 12 13 FACTUAL ALLEGATIONS 18. An IMSI catcher is a surveillance device available to law enforcement entities and 14 capable of collecting information emitted by cellular devices including cell phones, all without the 15 knowledge or consent of device owners. "IMSI" refers to the unique "international mobile subscriber 16 identity" number assigned to cellular devices. 17 19. IMSI catchers function by masquerading as the cell phone towers used by wireless 18 companies such as AT&T and T-Mobile. By mimicking an actual cell phone tower, the IMSI catcher 19 forces cell phones within its range into emitting identifying signals. This information can be used to 20 identify each phone's unique numeric identifier and location, or to capture the communications content 21 of targets and bystanders alike. Law enforcement can also use the unique identifiers to demand 22 information about individuals from wireless companies.' 23 20. IMSI catchers operate in a sweeping, dragnet manner. An IMSI catcher gathers 24 information from all locations within its range, including private spaces hidden behind walls. 25 Depending on an IMSI catcher's signal strength, its broadcast radius can reach up to several kilometers. 26 ' Jennifer Valentino-Devries, How 'Stingray' Devices Work, Digits Tech News & Analysis From the WSJ, WALL STREET JOURNAL ONLINE (Sept. 21,2011), http://blogs.wsj.com/digits/20l 1/09/21/howstingray-devices-work. 28 4 27 VERIFIED PETITION FOR WRIT OF MANDATE allowing it to scoop up information from all private locations in the area. Because of the way they 2 function, IMSI catchers may result in prolonged electronic location tracking and the collection of data 3 associated with individuals not subject to any investigation.^ 4 21. Law enforcement operates IMSI catchers in a manner that prevents individuals from 5 knowing that infonnation emitted by their cell phones has been collected. IMSI catchers mimic the 6 cellular network infrastructure that individuals trust and rely on every day. Because IMSI catchers can, 7 on their own, force cell phones to transmit information, they do not require the knowledge or consent of 8 phone owners in order to operate. The ability of IMSI catchers to operate through building walls and 9 physical structures further prevents individuals from knowing when the devices are being used to 10 capture their private information. 11 22. With the appropriate configuration, IMSI catchers can also capture the content of 12 communications, such as voice calls and text messages. And their sweep is vast: the device can be 13 maintained at police stations, other public venues, or mounted on cars or even airplanes."* 14 23. IMSI catchers are used freely by law-enforcement agencies throughout the country. 15 Law-enforcement agencies use these devices with little or no oversight by the public, legislative 16 agencies, or courts and can obtain cellular data and information by using IMSI catchers without the 17 assistance or even the knowledge of the cellular providers themselves. Some law-enforcement agencies 18 seek a warrant to authorize the use of an IMSI catcher; others seek a Pen Register and Trap and Trace 19 ^ See Kate Klonick, Stingrays: Not Just for the Feds!, SLATE (Nov. 10, 2014), 20 http://www.slate.eom/articles/technology/future_tense/2014/l l/stingrays_imsi_catchers_how_local_law 21 _enforcement_uses_an_invasive_surveillance.html ("That's every location and outgoing call and text log of every phone within a certain radius—up to several kilometers . . . . " ) ; Kim Zetter, Government 22 Fights for Use of Spy Tool That Spoofs Cell Towers, WiRI-D (March 29, 2013), http://www.wired.com/2013/03/gov-fights-stingray-case/ ("It captures data from 'all wireless devices in 23 the immediate area of the FBI device that subscribe to a particular provider' according to government documents—including data of innocent people who are not the target ofthe investigation."). 24 •3 See Kim Zetter, Secrets of FBI Smartphone Surveillance Tool Revealed in Court Fight, WIRED (April 25 9, 2013), http://www.wired.com/2013/04/verizon-rigrnaiden-aircard/all/ ("The stingray then 'broadcast[s] a very strong signal' to force the [cellular device] into connecting to i t . . . . " ) . 26 "* See Michael Bott and Thom Jensen, Cellphone spying technology being used throughout Northern 27 California, NEWS 10 ABC (March 6, 2014), http://www.newsl0.net/story/news/investigations/watchdog/2014/03/06/cellphone-spying-technology28 used-throughout-northem-califomia/6144949/. 5 VERIFIED PETITION FOR WRIT OF MANDATE authorization from the court. Other law-enforcement agencies, however, may not seek judicial 2 authorization at all for the use of an IMS! catcher. When they do seek a warrant or court order, law 3 enforcement may not adequately explain the nature of IMSI catchers to the court: multiple news reports 4 have uncovered evidence of judges unwittingly signing hundreds of warrants authorizing the use of 5 IMSI catchers.^ 6 24. Much is known about the existence and capabilities of IMSI catchers.^ The Department 7 of Justice has made publicly available extensive information on the agency's legal positions regarding 8 their use and hundreds of articles have been published about IMSI catchers, their capabilities, and 9 controversies in criminal cases in which the use of IMSI catchers may have been a factor in identifying a 10 suspect's location. These news articles describe how IMSI catchers work. They also describe the 11 technology underlying IMSI catchers, including technical background, descriptions of how they 12 function, estimates of their service range, and details about the information they are capable of 13 monitoring and collecting. However, little is known about how much public taxpayer money law14 enforcement agencies spend on thes devices, and about their deployment: i.e., how and the extent to 15 which law-enforcement agencies use them, what law-enforcement agencies do with the data on innocent 16 bystanders that is collected by these devices, and whether certain law-enforcement agencies permit any 17 18 19 ^ See, e.g., Ellen Nakashima, Secrecy around police surveillance equipment proves a case's undoing, WASHINGTON POST, Feb. 22, 2015; Adam Lynn, Tacoma police change how they seek permission to use 20 cellphone tracker, Ti-lE NEWS TRIBUNE, Nov. 15, 2014; Cyrus Farivar, Legal experts: Cops lying about 21 cell tracking "is a stupid thing to do ", ARS TECHNICA (June 20, 2014), http://arstechnica.com/techpolicy/2014/06/legal-experts-cops-lying-about-ceII-tracking-is-a-stupid-thing-to-do/; Kim Zetter, 22 Florida Cops' Secret Weapon: Warrantless Cellphone Tracking, WiRED (March 3, 2014), http://www.wired.com/20I4/03/stingray/; Ellen Nakashima, Little-known Surveillance Tool Raises 23 Concerns by Judges, Privacy Activists, WASH. POST, March 27, 2013. 24 ^ Several academic papers explain the functioning of the technology. See, e.g., Daehyun Strobel, IMSI Catcher, Seminararbeit, Ruhr-Universitat, Bochum, Germany, 13, July 13, 2007; Juliam Dammann, 25 "IMSI-Catcher and Man-in-the-Middle Attacks," presentation at Seminar on Mobile Security, University of Bonn at 5, Feb. 9, 2011. Security researchers have also duplicated and explained IMSI26 Catcher technology to the public. Sean Hollister, Hacker intercepts phone calls with homebuilt $1,500 IMSI catcher, claims GSM is beyond repair, ENGADGET (July 31, 2010), 27 http.7/www.engadget.com/20] 0/07/31/hacker-intercepts-phone-calls-with-homebuilt-l-500-imsicatcher/. 28 6 VERIFIED PETITION FOR WRIT OF MANDATE A judicial oversight of their use of IMSI catchers. 2 25. On May 29, 2014, the ACLU-NC sent a CPRA request to the Sheriffs Department for 3 the disclosure of certain public records. See Cal. Gov. Code §§ 6258, 6252(c) and (e), 6253. A true and 4 correct copy of this request is attached to this petition as Exhibit A. 5 26. The request sought the following records related to the Sheriffs Department's use of 6 IMSI catcher surveillance technology, all of which are "public records" under the CPRA: 7 a. Contracts or agreements signed with Harris Corporation, a company that manufactures 8 IMSI catchers, since 2000 for the purchase of equipment, software, maintenance of 9 training for law-enforcement agencies as well as invoices, purchase orders, and any supporting documentation collected in the procurement process. 10 11 b. Grant applications, funding requests, and correspondence with funding entities, related to 12 the above transactions since 2000, including but not limited to grant applications and 13 related documents submitted to and received from the CA Emergency Agency since 14 2000, the Sacramento County Office of Emergency Services, the California Office of 15 Emergency Services, or the Urban Areas Shield Initiative (UASI). 16 c. Documents referencing or relating to IMSI catchers or related terms including but not 17 limited to policies, procedures, practices, legal opinions, memoranda, briefs, 18 correspondence and training materials, template applications, template affidavits in 19 support of applications, template proposed court orders, or warrants. 20 Exhibit A, 1-2. 21 27. The letter further requested that, pursuant to Government Code § 6254(f)(2), the Sheriffs 22 Department summarize the information contained within any records it claims are exempt from 23 disclosure. Exhibit A, 2. 24 28. The ACLU-NC requested that the Sheriffs Department waive copying fees and 25 ' See, e.g., Fred Clasen-Kelly, CMPD's cellphone tracking cracked high-profile cases, CMARLOITE OBSERVER, NOV. 22, 2014; John Kelly, Cellphone spying: It's not just the NSA, USATODAY, June 13, 2014; Ryan Gallagher, Meet the Machines That Steal Your Phone's Data, ARS TECI-INICA (Sept. 25, 27 2013), http://arstechnica.com/tech-policy/2013/09/meet-the-machines-that-steal-yourphones-data/ 28 (describing various models of Harris Corporation's cell site simulators and related equipment). 7 26 VERIFIED PETITION FOR WRIT OF MANDATE 1 indicated its willingness to pay fees in the event that Sheriff^s Department would not waive them. Id. 2 29. On June 5, 2014, the Sheriffs Department responded to the ACLU-NC's request. A true 3 and correct copy of this response along with the disclosed documents is attached as Exhibit B. 4 30. In response to the ACLU-NC's first request, see supra ^ 25.a, the Sherriff s Department 5 admitted that responsive records exist but refused to produce them. Exhibit B, 1. 6 31. In response to the ACLU-NC's second request, see supra 25.b, the Sheriffs 7 Department produced four redacted documents and admitted that additional responsive documents exist 8 that it would not produce. Exhibit B, 1-7. 9 32. In withholding many and redacting other documents, the Sheriffs Department relied on 10 several CPRA exemptions (Cal. Gov. Code §§ 6254(k), 6255.23, 6255(a)), the Freedom of Information 11 Act (5 U.S.C. §§ 553(b)(4), (b)(6), (b)(7)(C), (b)(7)(E)), the Homeland Security Act (6 U.S.C. §§ 12 482(e), (f)(1)); the Arms Export Control Act (22 U.S.C. § 2778), the International Traffic in Arms 13 Regulations (22 C.F.R. §§ 120-130), Executive Order 13637, and the United States Munitions List (22 14 C.F.R. § I2I.1, Category XI, subpart (b)). Exhibit B, 1-2. 15 33. The Sheriffs Department's response did not discuss the ACLU-NC's third request, see 16 supra 11 28.C, and the Sheriffs Department did not produce documents in response to this request. 17 Exhibit B. 18 34. On June 20, 2014, the ACLU-NC replied to the Sheriffs Department's June 5 response, 19 explaining the ACLU-NC's position that the Sheriffs Department's response to the requests was 20 improper. A true and correct copy of this letter is attached as Exhibit C. 21 35. On July 21, 2014, the Sheriffs Department responded to the ACLU-NC's June 20"" letter 22 and provided four additional redacted documents. The letter continued to cite all exemptions the 23 Sheriffs Department cited in its June 5th, 2014 letter, and also amended a previously cited exemption, 24 substituting Cal. Gov. Code § 6254.19 for § 6254.23. A true and correct copy of this response along 25 with the additional disclosed documents is attached as Exhibit D. 26 36. The Sheriffs Department has not provided the ACLU-NC any additional responsive 27 documents since July 21, 2014. 28 8 VERIFIED PETITION FOR WRIT OF MANDATE 1 2 3 FIRST CAUSE OF ACTION (for a writ of mandate compelling production of documents under the California Public Records Act, Cal. Gov. Code §§ 6250-6270) 37. The ACLU-NC incorporates by reference the allegations of paragraphs 1 through 36 above as though fully set forth herein. 4 38. Under the CPRA, the ACLU-NC has a right to inspect, and the Sheriffs Department has 5 a duty to provide promptly and without delay, public records subject to disclosure. 6 39. The ACLU-NC submitted a valid request for records under the CPRA on May 29, 2014. 7 As it stated in this request, the ACLU-NC was at all times ready to pay any associated fees. 8 40. The Sheriffs Department admits that it possesses records responsive to the ACLU-NC's 9 requests beyond the eight redacted documents that it has disclosed to date. On information and belief, 10 the Sheriffs Department possesses unredacted versions ofthe eight documents that it has produced with 11 redactions. 12 13 14 15 16 41. requests, or any portion of these records, is exempt under express provisions of the CPRA or any other authority, or that on the facts of this particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosing the record. PRAYER FOR RELIEF 17 WHEREFORE, the ACLU-NC prays as follows: 18 19 20 21 22 The Sheriffs Department cannot demonstrate that any record subject to the ACLU-NC's 1. That the Court issue a peremptory writ of mandate directing the Sheriffs Department to provide the ACLU-NC with all requested records; 2. That the ACLU-NC be awarded attorneys' fees and costs; and 3. For such and further relief as the Court deems proper and just. 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDATE 1 Dated: MarchlO, 2015 Respectfully submitted, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA Michael Risher, SBN 191627 mrisher@aclujic.com Linda Lye, SBN 215584 llye@aclunc. com Nicole Ozer, SBN 228643 nozer@aclunc.com Matdiew Cagle, SBN 286101 mcagle@aclunc.com 39 Drumm Street San Francisco, CA94111 Telephone:(415) 621-2493 Facsimile: (415)255-1478 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA Peter Bibring, SBN 223981 pbibring@acIusocal.org Peter Bibring, SBN 26405 j price@aclusocal. org 1313 West Eighth Street Los Angeles, California 90017 Telephone:(213) 977-9500 Facsimile: (213)977-5297 LATHAM & WATKINS LLP Sadik Huseny, SBN 224659 sadik.huseny@lw.com Hanno Kaiser, SBN 262249 hanno .kai ser@l w. com Kyle Virgien, SBN 278747 kyle.virgien@lw.com 505 Montgomery Street, Suite 2000 San Francisco, CA, 94111 TeIephone:(415) 391-0600 Facsimile: (415) 395-8095 Lujing Liu, SBN 300769 gavin.liu@lw.com 140 Scott Drive Menlo Park, CA, 94025 Telephone:(650) 463-4600 Facsimile: (650) 395-2600 Attomeys for Petitioner 28 10 VERIFIED PETITION FOR WRIT OF MANDATE VERIFICATION I, Cai-ey Lamprecht, am a litigation assistant the American Civil Liberties Union of Northern Califomia. I have read the foregoing Verified Petition for Peremptory Writ of Mandate Ordering the Sacramento County Sheriffs Department to Comply with its Duties under the Califomia Public Records Act, and the facts alleged in paragraph 25 are within my knowledge, and I know them to be true. I declare under penalty of perjury under the laws ofthe State of Califomia that the foregoing is tme and correct. Dated: ^^Oymi, \O^20\5 11 VERIFICATION I, Chrisdne Sun, am the Associate Director of the American Civil Liberties Union of Northern California. I have read the foregoing Verified Petition for Peremptory Writ of Mandate Ordering the Sacramento County Sheriffs Department to Comply with its Duties under the California Public Records Act, and the facts alleged in paragraph 7 are within my knowledge, and I know them to be true. The allegations in paragraphs 1-6 and 8-41 are stated on information and belief and as to those matters I believe them to be true. I declare under penalty of perjury under the laws of die State of California that the foregoing is true and correct. Dated: 3/\0/Z^\^ 12 EXHIBIT A ACLU AMERICAN CIVIL LIBERTIES UNI9N of NORTHERN CALIFORNIA 1 I u. May 29, 2014 VIA EMAIL AND U.S. MAIL Deputy Teresa Deterding #48 Sacramento County Sheriffs Department Professional Standards Bureau/Legal Affairs P.O. Box 988 Sacramento, CA 95812-0988 tdeterding@sacsheriffcom re: Public Records Act request regarding cellular telephone surveillance technology Dear Deputy Deterding, I am writing on behalf of the American Civil Liberties Union of Northem Califomia to request records of the Sacramento County Sheriffs Department relating to cellular telephone surveillance technology. This request is made pursuant to the California Public Records Act (Government Code §§ 6250, et. seq.) and Article I § 3(b) of the California Constitution for the following records': 1) Contracts or agreements signed with Harris Corporation (headquartered in Melboume, Florida) since 2000 for the purchase of equipment, software, maintenance or training for law enforcement agencies as well as invoices, purchase orders, and any supporting documentation collected in the procurement process. 2) Grant applications, funding requests, and correspondence with funding entities, related to the above transactions since 2000, including but not limited to grant applications and related documents submitted to and received from the CA Emergency Management Agency since 2000, the Sacramento County Office of Emergency Services, the California Office of Emergency Services, or the Urban Areas Shield Initiative (UASI). '"Records" covered by this request include but are not limited to: internal and external correspondence (including email), memoranda, drafts, notes, outlines, policies, procedures, regulations, directives, instructions, orders, bulletins, pamphlets or brochures, scripts, handouts, analyses, evaluations, reports, summaries, writings, logs and other written records or records by any other means, including but not limited to records kept on computers, computer source and object code, electronic communications, computer disks, CD-ROM, video tapes or digital video disks. 13 Deputy Deterding Page 2 3) Documents referencing or relating to IMSI catchers (International Mobile Subscriber Identity catchers) or related terms as set forth below. This request includes but is not limited to policies, procedures, practices, legal opinions, memoranda, briefs, correspondence and training materials, template applications, template affidavits in support of applications, template proposed court orders or warrants. The term "IMSI catcher" means technology that simulates a cell tower and triggers an automatic response from nearby wireless devices. It is typically used to identify the unique numeric identifier associated with a cellular phone, or to identify the location of a wireless device. Some IMSI catchers are also capable of recording incoming and outgoing telephone numbers, or capturing the content of telephone calls or data transmissions. An IMSI catcher is also referred to as a cell site simulator or digital analyzer. The device has the following Harris Corporation product names: StingRay, TriggerFish, AmberJack, Hailstorm, Kingfish, and Loggerhead. The Califomia Public Records Act requires within ten (10) days either production ofthe requested documents and/or notice of the specific reasons why the materials requested (or portions thereof) are exempt from disclosure. Further, we request a summary of the in formation contained within any records you claim to be exempt under Government Code § 6254(f), as required by Govemment Code § 6254(f)(2). Please send copies of the requested records to me at the address shown above, or email them to me at llve@aclunc.org. We request that you waive any fees that would be normally applicable to a Public Records Act request. In addition, if you have the records in electronic form you can simply email them to me without incurring any copying costs. See Gov't. Code § 6253.9. However, should you be unable to do so, the ACLU will reimburse your agency for the direct costs of copying these records plus postage. See Gov't. Code § 6253(b). If you have any questions regarding this request, please feel free to contact me at (415) 621-2493. Thank you in advance for your timely cooperation. Linda Lye Senior Staff Attorney 14 EXHIBIT SACRAMENTO COUNTY ^ M M SHERIFF'S DEPARTMENT SCOTT R. JONES Sheriff Junes, 2014 American Civil Liberties Union Attn: Linda Lye 39 Drumm Street San Francisco, CA94111 RE: PUBLIC RECORDS ACT REQUEST Dear Ms. Lye, Thank you for your Public Records Act Request dated May 29, 2014.1 have been designated by the Sheriff, Scott R. Jones, to respond to your request. Our response to your requests are as follows: Request 1: Contracts or agreements signed with Harris Corporation (headquartered in Melbourne, Florida) since 2000 for the purchase of equipment, software, maintenance or training for law enforcement agencies as well as invoices, purchase orders, and any supporting documentation collected in the procurement process. Response: Documents exist that are responsive to this request; however, they are exempt from disclosure under: • • • • Govemment Code Sections 6254 (k), 6254.23, 6255 (a); Freedom of Infomiation Act at 5 U.S.C. 552(b)(4), (b)(6), (b)(7)(C), and (b)(7)(E); Section 892 ofthe Homeland Security Act at 6 U.S.C 482 (e) and (f)(1); International Traffic in Arms Regulations (ITAR), 22 C.F.R. Parts 120-130, Arms Export Control Act, 22 U.S.C. 2778, Executive Order 13637 and/or the United States Munitions List, Category XI- Military Electronics, subpart (b). Request 2: Grant applications, funding requests, and correspondence with funding entities, related to the above transactions since 2000, including but not limited to grant applications and related documents submitted to and received from the CA Emergency Management Agency since 2000, the Sacramento County Office of Emergency Services, or the Urban Areas Shield Initiative (UASI). Response: We are disclosing five (5) documents in response to this request (see attached). Other documents exist that are responsive to this request; however, they are exempt from disclosure under: • • • Government Code Sections 6254 (k), 6254.23, 6255 (a); Freedom of Infonnation Act at 5 U.S.C. 552(b)(4), (b)(6), (b)(7)(C), and (b)(7)(E); Section 892 ofthe Homeland Security Act at 6 U.S.C 482 (e) and (f)(1); 15 ACLU CPRA Linda Lye June 5,2014 Page 2 • International Traffic in Arms Regulations (ITAR), 22 C.F.R. Parts 120-130, Arms Export Control Act, 22 U.S.C. 2778, Executive Order 13637 and/or the United States Munitions List, Category XI- Military Electronics, subpart (b). Ifyou need any further assistance, please contact me at (916) 874-5098 or by email at tdeterding@sacsheriff.com. Very truly yours, SCOTT R. JONES, SHERIFF Deputy Tess Deterding #48 Sacramento Coimty Sheriffs Department Legal Affairs Bureau 16 Sacramento Office of Emergency Services Stephen Cantelme, inlerim Chief of Emergency Services County executive .Bradley J. Hudson County of Sacramento June 6, 2013 Captain Phil Brelje Sacramento County Sheriff's Department 711G street Sacramento, CA 95814 Dear Captain Brelje: SUBJEQ: NOTIFICATION OF APPROVAL AUTHORITY APPLICATION CONDITIONAL DECISION FY 2013 STATE HOMELAND SECURITY GRANT PROGRAM Federal Grantor Agency: US DEPARTMENT OF HOMELAND SECURITY CFDA tt 97.067 Thank you for your application for the FY 2013 State Homeland Security Grant Program (SHSGP). As you are aware In March our office solicited proposals from our Operational Area for the.FY 2013 SHSGP. As expected, our response was significant and the over $4 million in funds requested exceeded our expected allocation. The Approval Authority met on May 29, 2013 and made their decision after careful review of the applications submitted. The Approval Authority selected projects that best met the priorities established by FEMA and CalEMA for grant funding to move forward in the County's application process. Due to limited funding this year, many worthy projects were not approved as the requests exceeded the anticipated allocation. Application It Amount Requested Application Name $300,275 2013-026 Decision Preliminarily Recommendation $300,275 The Approval Authority has reviewed your proposal and is interested In funding your project; however, due to the limited funding the Approval Authority has preliminarily approved your project. As with all of the proposals this is a tentative finding, actual funding allocations will not be made until our Operational Area funding has been awarded. Projects and/or amount may change if the award is less than anticipated. You will be notified with a follow-up letter once a final decision has been reached. This is not an award letter. Sincerely, Stephen Cantelme Interim Chief of Emergency Services cc: Sgt. Dan Morrissey Lona Deaton 3720 Dudley Blvd. • McClellan, Califomia 95652 • phone (916) 874-4670 • fax (916) 874-7080 • www.saccounty.net 17 EDMUND G.BROWN JR. GOVERNOR MARK S. GHILARDUCCI DIRECTOR Gil OES OOVEftNOR'S OFFICE OF EHERBENCY SERVICES August 29,2013 Mr. Stephen Cantelme Interim Chief of Emergency Services Sacramento County 3720 Dudley Boulevard McClellan, CA 95652 SUBJECT: APPROVAL 0F( _ FY 2013 STATE HOMELAND SECURITY GRANT PROGRAM (SHSGP) Grant #2013-00110, Cal OES ID#067-00000 Dear Mr. Cantelme: The Califomia Governor's Office of Emergency Services (Cal OES) has received, reviewed, and approved Sacramento County's request for the acquisition o f ^ B B H H H H H H M H I i i i ^ The decision was based on the information you provided, detailing how this product will give Sacramento County the ability to prevent, plan for, respond to, and recoverfroma terrorism event. If you have any questions about this letter, please contact your Program Representative, Rachel Magafla, at 916-845-8451 or by email at Rachel.Magana(fl).CalEMA.Ca.Gov. Thank you for your work in protecting Califomia. We look forward to your continued collaboration towards our homeland security strategy and appreciate your cooperation and support. Sincerely, Darren Tsang, Unit Supervisor Homeland Security and Prop IB 3650 SCHRIEVER AVENUE, MATHER, CA 95655 (916) 845-8506 TELEPHONE (916) 845 8511 FAX 18 Sacramento Office of Emergency Services Stephen Cantelme, Interim Chief of Emergency Services County Executive Bradley J. Hudson County of Sacramento October 18, 2013 SheriffScottR. Jones Sacramento Sheriffs Department 711G Street Sacramento, CA 95814 SUBJECT: NOTJFICATION OF SUB-RECIPIENT AWARD FY 2013 HOMELAND SECURITY GRANT PROGRAM Federal Grantor Agency: US DEPARTMENT OF HOMELAND SECURITY CFDA tt 97.067 Pass-Through Agency: CALIFORNIA EMERGENa MANAGEMENT AGENCY GRANTS 2013-00110 Performance Period: August 29, 2013 to January 31, 2015 Dear Sheriff Jones: The Sacramento Sheriffs Department has been awarded a FY 2013 Homeland Security Grant Program project in the amount of $650,275. This project's funding is authorized for the purchase of Law Enforcement Surveillance Equipment. Funding is also authorized in support of the Sacramento CCIC/RTAC Fusion Center. New Funding Project G: Law Enforcement $300,275 Project 1: Sacramento CCIC/RTAC Fusion Center $350,000 Total Funding $550,275.00 By accepting this award, you acknowledge that this is a federal monetary award and your agency or department is a Sub-Recipient to Sacramento County OES, as Sub-Grantee to the State of California, who is the Grantee. Sub-Recipients are responsible to comply with all federal statutes, regulations, policies, guidelines and requirements, including but not limited to: • 44 CFR Part 13, Uniform Administrative Requirements for Grants and Cooperative Agreements To State and Local Governments • All provisions of 2 CFR, including: Part 225 Cost Principles for State, Local and Indian Tribal Governments (0MB Circular A87); Part 230 Cost Principles for Non-Profit Organizations (0MB Circular A-122); Part 215 Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations (OMB Circular A-110); Part 220 Cost Principles for Educational Institutions (0MB Circular A-21) • OMB Circulars A102 and A-133, E.0.12372 and the current Administrative Requirements, Cost Principles, and Audit Requirements • Applicable Federal, State and Local Laws including but not limited to those listed in grant assurances. • Federal and State Supplemental Program Guidance. • All sections of FY 2013 CalEMA Grant Assurances Sub-Recipients are responsible to meet the following conditions: 3720 Dudley Blvd. • McClellan, California 95652 • phone (916) 874-4670 • fax (916) 874-7080 • www.saccounty.net 19 I. Your agency accepts complete financial liability and will provide: a. Signed Federal Grant Assurances, from the 2013 grant guidance, by an agency authorized signatory. b. Check every contractor who will be paid $25,000 or more against the federal debarment list before contracting with that entity. EO's 12549 and 12689 c. Repay any funds due to an over-payment for a non-eligible or unapproved activity, or as required by a negative audit finding. 2.. All Sole Source procurements, projects requiring EHP reviews, Aviation/Watercraft request and EOC projects must receive prior approval from OES. 3. All project modifications require notification to OES and prior approval. 4. Reimbursement claims, status reports and updated workbooks are due every quarter. For quarters with no expense, a project progress report will be due. 5. All claims for reimbursement must be supported by source documentation, such as cancelled checks, paid bills, payroll records, signed time and attendance sheets, purchase orders, invoices, delivery receipts, contracts, etc. All documentation must be maintained and submitted upon request for monitoring or audit by our office, the state or federal government. 6. All claims must submit a canceled check or general ledger report to show that vendors were paid prior to reimbursement. 7. Ensure all original invoices are clearly labeled with the grant year and project(s) before they are copied and sent for payment to ensure subsequent copies are auditable and not double-billed to another grant/budget. 8. All equipment is to be labeled and tracked according to grant guidelines. Equipment will be tracked every two years and a tracking report will need to be updated by your agency. Equipment that is lost, stolen or destroyed needs to be reported to our office immediately and may need to be replaced by your agency at agency cost. 9. A project timeline will be set In collaboration with your agency and our Grant Administrator. This timeline must be followed and changes must be pre-approved. The Approval Authority may disencumber funds from any project that does not reasonably follow the agreed timeline. 10. Maintain complete and accurate records of all grant related activities for three years from the date of receipt of a closeout letter from the County. Letters will not be sent until after the state has closed the grant program. I I . Cost savings must be returned for reallocation by the Approval Authority and may not be expended on additional or unapproved items. Sub-Recipients may not begin their projects until this notice and grant assurances have been signed, dated and returned to Sacramento OES. In the absence of an existing resolution identifying approved signatories, the department or agency head must sign. We appreciate your interest in better preparing our community and we welcome your participation in our regional safety net. We are here to assist you so please feel free to contact Aleta Krull at 916-874-2280 with any questions. Sincerely, Chief Stephen Cantelme cc: Captain Phil Brelje Sgt. Dan Morrissey Melody LaFond Herb Brown Lona Deaton I acknowledge receipt of this Notification of Sub-Recipient Application Approval and requirements of participation in this federal grant program. SignaUire_ _ Name/Title 20 Date Sacramento Office of Emergency Services Stephen Cantelme, Interim Chief of Emergency Services County Executive Bradley J. Hudson County of Sacramento October 18,2013 Sheriff Scott R. Jones Sacramento Sheriffs Department 711 G Street Sacramento, CA 95814 SUBJEa: APPROVAL OF SOLE SOURCE PROCUREMENT FY 2013 HOMELAND SECURITY GRANT PROGRAM Federal Grantor Agency: US DEPARTMENT OF HOMELAND SECURITY CFDA ft 97.067 Pass-Through Agency: CALIFORNIA GOVERNOR'S OFFICE OF EMERGENCY SERVICES # 2013-00110 Performance Period: August 29, 2013 to January 31,2015 Dear Sheriff Jones: The Sacramento Sheriffs Department: Law Enforcement Surveillance Equipment Project has been approved for procurement with m m B B M H U H H H H m H P S , based on the Information submitted and reviewed by the California Governor's Office of Emergency Services. This decision was based on the information you provided, detailing how this product will give Sacramento County the ability to prevent, plan for, respond to, and recover from a terrorism event. New Funding Project G: Law Enforcement $300,275 Total Funding $300,275.00 Sincerely, Chief Stephen Cantelme cc: Captain Phil Brelje Sgt. Dan Morrissey 3720 Dudley Blvd. • McClellan, California 95652 • phone (916) 874-4670 • fax (916) 874-7080 • www.saccounty.net 21 EXHIBIT ACLU a AMERICAN CIVIL LIBERTIES UN 6N of NCaTHERN CAUSFffiRMJA \ June 20, 2014 VIA EMAIL AND U.S. MAIL Deputy Teresa Deterding #48 Sacramento County Sheriffs Department Professional Standards Bureau/Legal Affairs P.O. Box 988 Sacramento, CA 95812-0988 tdeterd i ng(gsacsheri ff.com Re: California Public Records Act Request Dear Deputy Deterding: The American Civil Liberties Union of Northem Califomia ("ACLU-NC") writes regarding the Sacramento County Sheriffs Department's ("your") June 12, 2014 letter responding to its Califomia Public Records Act ("CPRA") request of May 29, 2014. Your response is insufficient under the CPRA; furthermore, the cited exemptions you invoke do not justify withholding the requested records. We therefore request that you release the requested records and provide a complete response by July 7, 2014. I. FACTUAL BACKGROUND On May 29, 2014, the ACLU-NC submitted a CPRA request to the Sacramento Sheriffs Department for the following records: • Contracts or agreements signed with Harris Corporation since 2000 for the purchase of equipment, software, maintenance or training for law enforcement agencies as well as invoices, purchase orders, and any supporting documentation collected in the procurement process. • Related grant applications, funding requests and correspondence, including but not limited to, those submitted to the CA Emergency Management Agency, to the Sacramento County Office of Emergency Services, to the California Office of Emergency Services, or under the Urban Areas Shield Initiative (UASI). • Documents referencing or relating to IMSI Catchers (International Mobile Subscriber Identity), including but not limited to, policies, procedures, practices, legal opinions, memoranda, briefs, correspondence and training materials, 22 Deputy Deterding Page 2 template applications, template affidavits in support of applications, template proposed court orders or warrants. In response, on June 12, 2014, you provided 5 pages of material and withheld all other responsive records. In particular, your office declined to produce the requested documents, claiming that they are exempt from disclosure under Government Code Sections 6254 (k), 6254.23, 6255 (a). Freedom of Information Act at 5 U.S.C. 552(b)(4), (b)(6), (b)(7)(C), and (b)(7)(E), Section 892 ofthe Homeland Security Act at 6 U.S.C 482 (e) and (f)(1), International Traffic in Arms Regulations (ITAR), 22 C.F.R. Parts 120-130, Arms Export Control Act, 22 U.S.C. 2778, Executive Order 13637 and/or the United States Munitions List, Category XIMilitary Electronics, subpart (b). We address the inapplicability of each cited exemption, as well as the insufficiency of your response below. II. LEGAL ARGUMENT A. Because No Exemptions Apply, You Must Disclose the Requested Records. Let us be clear about the fundamental legal framework governing the ACLU-NC's request and your response to it: The CPRA embodies strong public policy in favor of disclosure of public records, such that "[public] records must be disclosed unless they come within one or more of the categories of documents exempt from compelled disclosure." Rogers v. Superior Court, 19 Cat. App. 4th 469, 476 (2d Dist. 1993) (emphasis added). Furthermore, any exemptions must be "construed narrowly." San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 773 (2d Dist. 1983). In other words, there is nothing voluntary, discretionary, or optional about your compliance with the ACLU-NC's request. You must disclose the requested records unless a narrowly construed exemption applies. Here, none of the cited exemptions applies to the requested material. We address the inapplicability of each cited exemption in turn. 1. CAL. GOV'T CODE § 6254.23 Your refusal to disclose records under CAL. GOV'T CODE § 6254.23 is puzzling. Under § 6254.23 only records that are "risk assessment[s]" or "railroad infrastructure protection program[s] filed with the Public Utilities Commission, the Director of Homeland Security, and the Office of Emergency Services...." are exempt. CAL. GOV'T CODE § 6254.23. Rail operators must submit "risk assessment[s]" and "railroad infrastructure protection program[s]" that describe rail facilities and various training and safety programs associated with those facilities. See CAL. PUB. UTIL. CODE § 7665.2-4. Stating the obvious, Harris Corporation and the Sacramento County Sheriffs Department are not rail operators. And even if they were, contracts or agreements signed with Harris Corporation and related grant applications, funding requests and correspondence, as well as documents referencing or relating to IMSI Catchers, have nothing to do with railway operations. CAL. GOV'T CODE § 6254.23 plainly does not apply and we request that you release any records withheld under this exemption. 23 Deputy Deterding Page 3 CAL. GOV'T CODE § 6254(k) CAL GOV'T CODE § 6254(k) is not an independent exemption, but "merely incorporates other prohibitions established by [federal and state] law." CBS Broadcasting Inc. v. Superior Court, 91 Cal. App. 4th 892, 907 (2d Dist. 2001). Under CAL. GOV'T CODE § 6254(k), federal or state non-disclosure requirements can apply under the CPRA, only //there is an independent basis for prohibiting disclosure of the requested information. See San Diego County Employees Retirement Assn. v. Superior Court, 196 Cal. App. 4th 1228 (4th Dist. 2011). Here, none of the cited federal statutes provide an independent basis for exempting the requested records from disclosure. Specifically: a. Freedom of Information Act, 5 U.S.C. § 552(b)(4), (b)(6), (b)(7)(C), and (b)(7)(E), does not apply State and local agencies are not subject to the Freedom of Information Act ("FOIA") disclosure requirements. See generally 5 U.S.C. § 552; see also Pennyfeather v Tessler, 431 F.3d 54 (2d Cir. 2005) (finding that a public employee did not have the right to sue city department for disclosure of personal identifying information under FOIA because FOIA only applies to federal government agencies). In fact, FOlA's scope is limited to "agenc[ies]," defined as "any executive department, military department, Govemment corporation, Govemment controlled corporation, or other establishment in the executive branch of the Govemment (including the Executive Office of the President), or any independent regulatory agency." See 5 U.S.C. § 552(f)(1). State and local agencies, like the Sacramento County Sheriff's Department, fall outside the ambit of FOIA; thus, FOIA exemptions cannot be used to prohibit disclosure under CAL GOV'T CODE § 6254(k). b. Homeland Security Act of 2002, 6 U.S.C. § 482(e), (f)(1), does not apply The Homeland Security Act of 2002 prohibits state and local agencies from disclosing "homeland security information" received from a federal agency. See County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1323-24 (6th Dist. 2009) ("[T]he federal statute's prohibition on disclosure of protected confidential infrastructure information applies only when it has been 'provided to a State or local government or government agency' . . . . " ) . In County of Santa Clara, the court found that the Homeland Security Act of 2002 only prohibited state and local governments from disclosing "protected critical infrastructure information" that it received from the federal government, but not such information that it submitted to the federal government. See id. at 1318-19. Contracts or agreements signed with Harris Corporation and related grant applications, funding requests and correspondence, as well as documents referencing or relating to IMSI Catchers, are not "homeland security information." Cf. Strunk v. United Slates Dep't of State, 905 F. Supp. 2d 142, 146 (D.D.C. 2012) (computer transaction codes for a law enforcement and anti-terrorism database). Furthermore, even if the requested records could conceivably be classified as "homeland security information," the Homeland Security Act exemption only applies to records received from a federal agency, and does not apply to any records submitted to 24 Deputy Deterding Page 4 a federal agency or involving non-federal entities. County of Santa Clara, 170 Cal. App. 4th at 1318-19. Thus, you cannot rely on the Homeland Security Act to refuse disclosure of (a) materials submitted to a federal agency, or anyone else for that matter; (b) materials received from a non-federal agency actor, such as Harris Corporation, which is private company; or (c) materials generated or maintained by your office. c. Arms Export Control Act, 22 U.S.C. § 2778, does not apply The Arms Export Control Act ("AECA"), which regulates the "exports and imports of defense articles and services," has no application to the records request for information related to IMSI Catchers. 22 U.S.C. § 2778. The Directorate of Defense Trade Controls, which implements the AECA pursuant to authority delegated by Executive Order 13,637, made a commodity jurisdiction determination that IMSI Catchers are not on the U.S. Munitions List, and therefore, not subject to regulation under the AECA and International Traffic in Arms Regulations ("ITAR").' Furthermore, and quite obviously, even if IMSI Catchers were subject to AECA regulation, the disclosure of related records to an American journalist is not an "export." See ITAR, 22 C.F.R. § 120.14 (defining "export" to require a disclosure or transmission of information to a "foreign person"). There is no basis for withholding records under the AECA. Accordingly, your office cannot justify withholding the requested records pursuant to § 6254(k), as none of the cited federal non-disclosure provisions apply. We therefore ask that you produce any records withheld under this exemption. CAL GOV'T CODE 3. CAL. GOV'T CODE § 6255(a) The Sheriffs Department may not withhold documents under the public interest exemption because it has not identified any public interest in nondisclosure, let alone one that "clearly outweighs" the public interest in disclosure. See City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1011 (6th Dist 1999). Meanwhile, the public has a strong interest in the disclosure of documents demonstrating whether public funds are being spent on the public purposes for which they were intended. See, e.g., American Civil Liberties Union ofNorthern California v. Superior Court, 202 Cal. App. 4th 55, 67-69 (1st Dist. 2011) (public had strong interest in disclosure of identities of lethal objection drug suppliers to "assist in the detection of favoritism and fraud with respect to the use of state funds[.]"). Likewise, the public has a strong interest in contracts or agreements signed with Harris Corporation and related grant applications, funding requests and correspondence, which will shed light on whether the Sheriffs Department has purchased IMSI Catchers (and related items) with public funds and whether those purchases are being used for the public purposes for which they were intended. ' On April 22, 2013, the Directorate of Defense Trade Controls found that a "Portable SIM Box investigation Kit with IMSI/IMEI Catcher and Direction Finding Antenna" was not on the U.S. Munitions List, but was a "dual-use" item with both commercial and military applications subject to Export Administration Regulations with the Export Control Classification Number (ECCNSAOOl.e). See Commodity Jurisdiction Determinations, https://www.pmddtc.state.gov/commoditv iurisdiction/determinationAll.html. Notably, ECCN5A001 .f.2 explicitly describes IIVISI devices. See ECCN5AOO1 .f.2 ("Interception equipment not specified in 5AOOI .f. 1, designed for the extraction of client device or subscriber identifiers (e.g., IMSI, TIMSl or IMEI), signaling, or other metadata transmitted over the air interface.") 25 Deputy Deterding Page 5 To be clear: The burden of showing a trumping interest in non-disclosure is on you. See Cal. Gov't Code §6255(a).^ Without making this showing, you cannot withhold records based on § 6255(a). We request that you release records withheld under this exemption. B. If You Continue to Withhold Records, the Non-Exempt Portions of Reasonably Segregable Records Must Be Produced. Your reliance on obviously inapplicable exemptions to an American journalist's bona fide public records request is troubling. It is even more troubling that you also fail to comply with the law's requirements to produce the non-exempt portions ofthe records that you claim contain exempted information. Pursuant to CAL. GOV'T CODE § 6253(a), "[a]ny reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law." CAL. GOV'T CODE § 6253(a); see also American Civil Liberties Union Foundation v. Deukmejian, 32 Cal. 3d 440, 458 (1982). Furthermore, "the fact that a public record may contain some confidential information does not justify withholding the entire document." State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th n 77, 1187 (3d Dist. 1992); see also County ofSanta Clara, 170 Cal. App. 4th at 1321 (where non-exempt portions of homeland security information were produced); Skinner v. United States Dep't of.Justice et al., 893 F. Supp. 2d 109 (D.D.C. 2012) (same). Again, this is not a matter of discretion on your part. You must produce all requested non-exempt records or non-exempt portions thereof. III. CONCLUSION For the foregoing reasons, we request that you release the requested records and provide a complete response by July 7, 2014. Sincerely, Linda Lye Senior Staff Attorney ^ Under the CPRA, "the burden is on the public agency to show that the records should not be disclosed." San Gabriel Tribune, 143 Cal. App. 3d at 773. In particular, the CPRA requires an agency to "justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure ofthe record." See Cal. Gov't Code §6255(a). The Califonnia Supreme Court provided guidance on the justification required, and certified as sufficient, a response that explained: (1) why it withheld particular categories of records under particular exemptions, and (2) that certain categories of records did not exist. See Haynie v. Superior Court, 26 Cal. 4th 1061, 1066-74 (2001) (finding that "[w]hen an agency, in compliance with section 6255, articulates one or more ofthese exemptions, it will necessarily reveal the general nature of the documents withheld."). Accordingly, your letter response - consisting of a list of inapplicable statutes that purportedly exempt you from disclosing responsive records - did not comply with CPRA requirements. 26 EXHIBIT SACRAMENTO COUNTY l l M j f SHERIFF'S DEPARTMENT SCOTT R. JONES Sheriff July 21, 2014 American Civil Liberties Union Attn: Linda Lye 39 Drumm Street San Francisco, CA94111 RE: PUBLIC RECORDS ACT REQUEST Dear Ms. Lye, The Department has received and reviewed your letter dated June 20, 2014 in response to the Department's June 12, 2014 letter to you. Without altering our previously stated exemptions, the Department is providing additional redacted documentation (see attached). Additionally, I misquoted a Califomia Govemment Code Section that was provided in the Department's June 12, 2014 letter by using "Govemment Code Section 6254.23" when, in fact, the section should have read "Government Code Section 6254.19." Ifyou need any further assistance, please contact me at (916) 874-5098 or by email at tdeterding(^sacsheriff com. Very truly yours, SCOTT R. JONES, SHERIFF Deputy Tess Deterding #4, Sacramento County Sheriffs Department Legal Affairs Bureau REFER ALL CORRESPONDENCE TO: SACRAMENTO SHERIFF'S DEPARTMENT . P.O. BOX 988 • SACRAMENTO, CA 95812-0988 27 J$B296a.OO lOUFXOIJSBOj $32443.00 $ S09B.OO I W/O LAPTOP $ 3476.00 3126.00 4BS6.00 2444.0(] l/W ONLY 375.0, QO WW PA-KIT-IOW TRAIH-MLB TRAIN-NLB Oross Price Tax Itet i n c l , - tax *** Text changed *** POpiK M e KIT - 10 WATT (2 BA( miniHQ-MBitiBoaitiiB {TomoH mul) XRAINXHO'MEiliBOTmHB (TOITIOM OHIiY) TRAXHZIIt6-ME;iiB0t^RH£ (TuiTxon otiLy) 334,773,00 / l BA 242,192.91 / I liiA dooo.oo $ 4000.00 9 4000.00 $ 4000.00 234,773.00 17,419.91 243,192.91 •US) Pii0a: 2 of 3 28 J e n 114 Ub' U i l i a i e llein KHUUniTUUSi Ordsi qty. Mat Num U/t> t>d»o Unit DoBorlptlon tllt> U/b Price / Unit bdan Unit of ' MsnBUrO EKtended ValuB Total item value excluding tax 224/773,00 Total item value including tax and diauounts 242,192.91 ' Paoni 3 ol a Cligngn ID numbgifpilnt dato: 29 11 o\mn<«i9 I Pleaaa Rstnll Paymenis: Hards Corporation, GOSD ORIbankOetawate P.O. 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THIS ORDER I^tSoBC^TO 1THIS TI5RMS AlilD CONOITXOMS OF H U H I B ^ I F THERE ARE ftNY INCONaiSTEtlCIES BETWEEN TH.tfl ORDER AMD THE OSA CXJITTRaCT, THE GSA CONTRACT PHBVAIIiS. ]fll§RSA*ION^A^*'APPoiBBPfl^^^^iW^^S^^ AN APPOINTMENT, DBMVBRY WILL BB REFUSED AT THE SHIPPER'S EXPENSE, ^nU. jENVOICB MOST. BE SENT TO:-.Tj B- DULm'tlY- AISUiiEdS-)')' DO NOT SEND THE INVOICE TO TrtB PtmCHASING DIVISION. SENDING XOUR INVOICE TO THE PURCHASING DIVISION WIDL RESULT IN DELAY OP PAyMTStlT. PddOl 1 0/ 3 PureliDSA oiilar nuAiliiir/(»tnt mo'\ 34 t l 01/03/2000