Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 1 of 32 TN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA DANIEL DAVID RIGMAIDEN Plaintiff, ‘:1:1 1&1‘/L Civil Action No. I2-cv-01605 U FEDERAL BUREAU OF INVESTIGATION, et. al., 1\_/ \_/ \~__/ » Defendants. /y‘/\_/\/\ \_ DECLARATION OF DENNIS J. ARGALL REGARDING THE HARRIS AND WALL STREET JOURNAL REQUESTS I, Demis J. Argall, declare as follows: (1) I am the Assistant Section Chief of the Record/Information Dissemination Section (“RIDS”), Records Management Division (“RMD”), in Winchester, Virginia and, in the absence of RIDS Section Chief, David M. Hardy, I serve as Acting Section Chief for RIDS. I became the Assistant Section Chief on November I, 2008. From August 18, 2008 until October 31, 2008, I was the Unit Chief of Litigation Support Unit. I have been employed by the Federal Bureau of Investigation (“FBI”) since August 18, 2008. Prior to myjoining the FBI, from July 1 1, 2005 until July IO, 2008, I was on active duty in the United States Navy and assigned to United States Fleet Forces Command, located in Norfolk, Virginia, as the Fleet Judge Advocate. In that capacity, I was responsible for reviewing all information being released under the Freedom of Information Act (“FOIA”). From August 17, I983 to July 1 1, 2005, I served as an active duty Navy Judge Advocate at various commands and routinely dealt with FOIA matters, including a tour from January I987 to September I988 with the Department of the Navy Litigation Office Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 2 of 32 where I was a litigation counsel for FOIA matters. I am also an attorney who has been licensed to practice law in the State of Wisconsin since I983. (2) In my official capacity as Acting Section Chief of RIDS, I supervise approximately 225 employees who staffa total often (I0) FBIHQ units and two (2) field operational service center units whose collective mission is to effectively plan, develop, direct, and manage responses to requests for access to Federal Bureau of Investigation (“FBI”) records and information pursuant to the FOIA as amended by the OPEN Government Act of 2007 and the OPEN FOIA Act of 2009; the Privacy Act of 1974; Executive Order (“E.O.”) 13526, Presidential, Attorney General, and FBI policies and procedures; judicial decisions; and Presidential and Congressional directives. (3) Due to the nature of my official duties, I am familiar with the procedures followed by the FBI in responding to requests for information from its files pursuant to the provisions of the FOIA, 5 U.S.C. § 552, and the Privacy Act of I974, 5 U.S.C. § 552a. Specifically, I am aware of the treatment which has been afforded Mr. Rigmaiden's FOIA request for “agency records concerning the following portable/transportable wireless device locators (i.e., devices used to locate cell phones, etc.) and related equipment manufactured and/or branded and/or sold by Harris Wireless Products Group (Harris Corporation) (hereafter ‘Harris Corporation’).” I am also aware ofthe handling of the November 10, 201 1, FOIA request seeking “access to the following two categories of records: (a) “All agency records concerning comments made by FBI agents and employees to The Wall Street Journal (hereafter “WSJ”) reported in or in relation to the September 22, 201 1 WSJ article titled “‘Stingray’ Phone Tracker Fuels Constitutional Clash,” by Jennifer Valentino-DeVries; and (b), “All agency records concerning comments made by FBI agents and employees at a panel at the Brookings Institution in May of 201 l regarding 2 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 3 of 32 portable/transportable wireless device locators (e. g., cell site emulators) such as the Harris StingRay and KingFish.” (4) This declaration supplements and incorporates by reference the information previously provided in the declarations dated March 12, 2014 (“Declaration of David Hardy Regarding Wall Street Journal and the Brookings Request,” and “Declaration of David Hardy Regarding the Harris and EPIC Request”); and the declaration dated April 2, 2014 (“Declaration of David Hardy Regarding Adequacy of Search for the Harris Corp. Request”). This declaration further explains the FBl’s search of plaintiff’s FOIA requests. Also, for the Harris Corporation request, this declaration provides a particularized explanation of why each document from the sample falls within the claimed exemption 7(E). SEARCH FOR RECORDS RESPO_NSIVE TO PLAINTIFF’S WALL STREET JOURNAL ARTI_CLE REQUEST (5) As stated in 111] 21-22 of the “Hardy Declaration Regarding Wall Street Journal and the Brookings Request” of March 12, 2014, the FBI performed an individualized search query (outside of the CRS system) of those FBI divisions and offices most likely to maintain potentially responsive records by issuing a search e-mail for records pertaining to the September 22, 201 l Wall Street Journal article titled ‘“Stingray’ Phone Tracker fuels Constitutional Clash.” (6) In response to the FBI’s search e-mail, the FBI located 94 pages of material received from the very FBI office that provided the WSJ with FBI’s position for the news article. As such, by going directly to the actual source ofthe FBI’s information for the article, the 94 pages located by the FBI were derived from the location most likely to possess responsive material. Moreover, the 94 pages of material located and provided are directly on-point in terms of responsiveness. Nonetheless, given the Court’s ruling that the FBI has not yet met its burden 3 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 4 of 32 to show its search was adequate, the FBI took the additional step of searching the FBI Central Records System (“CRS”). (7) The FBI generally does not conduct full text searches in responding to FOIA and Privacy Act requests, such as this, as this extraordinary measure is unduly burdensome and/or not reasonably calculated to locate responsive records. The CRS is structured in a way that information important to an investigation or that may be important to the FBI in the future is indexed so that it can be easily retrieved. The system would not function as an effective investigative tool without such indexing.‘ Information that is not indexed generally consists of mere mentions of an individual that are deemed to have no continuing signifance to the FBI (such that it would not be a significant obstacle to the FBI if it is not indexed and easily retrievable). Such mere mentions are generally not accompanied by any other identifying information, such as a date of birth, social security number, address, phone number, etc.. Indeed, such mentions may only include a rst or a last name. A full text search would, however, retum these random and incomplete references to individuals. In fact, in RIDS experience, full text searches generally return significant numbers of “hits” to such random and incomplete references. RIDS then has to sift through each hit to determine whether it can determine if the hit is actually identifiable as the subject of the request. This takes significant amounts of time and resources, but generally does not result in RIDS being able to actually identify the individual from the random references. If RIDS cannot determine that the reference is to the actual subject of the request, then that hit is determined to be non-responsive. So the net result of such a search is typically a significant use of time and resources with little or no additional responsive ' FBI Special Agents and other employees index information so that they can find that information in reference to other investigations or intelligence activities. Failure to index pertinent information renders the CRS simply a huge repository without an effective or efficient means of locating and accessing information. 4 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 5 of 32 information being identified. (8) There are, however, certain situations in which there is a benefit and utility to the FBI conducting full text searches of the CRS. They generally are when: (a) a search of the CRS locates no records but the FBI has reason to believe that responsive records likely exist; or (b) a search of the CRS results in some records being located, but there is information indicating that more specific responsive records likely exist. In this case, the FBI had no reason to believe that any additional responsive records existed but chose to conduct a text search of the CRS to satisfy the Court’s concerns. (9) On December 3, 2014, the FBI conducted a full text search ofthe CRS’s ECF in order to identify any case file in the CRS containing the records sought by plaintiff regarding the WSJ article. The FBI searched the following text: “Sherry Sabol,” “09/22/2011,” (date ofthe article) and ‘“Stingray’ Phone Tracker fuels Constitutional Clash” (title ofthe WSJ article). The search yielded no additional responsive records. (10) As stated in 1] 23 of“Hardy Declaration Regarding Wall Street Journal and the Brookings Request” of March 12, 2014, for the Brooking portion ofthe request, the FBI performed an individualized search query (outside of the CRS system) to those FBI divisions and offices most likely to maintain potentially responsive records by issuing a search e-mail for records pertaining to a panel that Valerie Caproni participated in at the Brookings Institute on May 17, 201 1; the topic was Reforming the Electronic Communications Privacy Act. The search resulted in no responsive records. The FBI also searched the CRS with the following text for records indexed to: “Valerie Caproni” during the relevant date range of 04/01/2011 — 06/30/201 1 and “Brookings Institution” during the relevant date range of01/01/201 1 — 06/30/201 1. The search yielded no responsive records. Once initial searches are completed in 5 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 6 of 32 locations where the FBI would expect to find the requested information, the search is complete unless there is some factual basis to reasonably conclude additional records exist elsewhere. Additional searches for Brookings material are unnecessary and lack a basis in fact because nothing indicated that records exist elsewhere following the search ofthe very office where such records would have been created and the CRS search described above. The FBI would not even know where else to search. Moreover, the Court held that the FBI did not need to contact its prior General Counsel, Valerie Caproni, for the search to be adequate. e 111] 1 l-l2, inf/"a., for an explanation as to why further searches for responsive records would be cumulative, redundant, and unduly burdensome and would not likely yield any responsive records. _ (1 1) The extraordinary text search measures described above also failed to locate or point to any additional emails; this underscores the lack of necessity to conduct searches of “archived emails.” First, searches of email systems in response to the thousands of FOIA/PA requests FBI RIDS receives annuallyz is not commonly done as pertinent records indexed to case files in the CRS also include records in email format. Nonetheless, a search for pertinent emails—and any records regardless of form—was performed here via the targeted search query ofthe very office responsible for producing the responsive news article resulting in 94 pages of responsive material (to include 85 pages of emails). RIDS applies the principle of reasonableness to its search methodology. In practice, once initial searches are completed in locations where the FBI would expect to find the requested information, the search is complete unless there is some factual basis to reasonably conclude additional records exist elsewhere. Without such a factual nexus, searching elsewhere is inherently unnecessarily, cumulative, and 2 In FY 2014, FBI RIDS received 17,867 FOIA/PA requests. For FY 2015, thus far (October 2014 through May 4, 2015), FBI RIDS received l 1,204 FOIA/PA requests. 6 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 7 of 32 unduly burdensome as such efforts would be premised on speculation that records may exist-_not reasonableness. As a practical matter, conducting searches premised on speculation versus reasonableness interferes with the FBI’s ability to implement the FOIA statute for the public at large as signi cant time would be siphoned from finite RIDS resources responding to the thousands of annual requests. (12) As relevant here, given the fruitful search of the responsible office for the FBI article yielding records in email format and the subsequent fruitless text search of the CRS, there is simply no factual basis to conclude that any searches of “email archives” would be reasonable. As the targeted search of the responsible FBI office included emails, and the CRS search would have included emails, another search would be cumulative of this effort. Given the lack of a factual nexus to suggest responsive email records exist in other offices or locations, not only would the scope of any subsequent such be speculative in nature, the conduct of the search would be unduly burdensome, as the FBI would not even know where to search. In sum, any further search for archived emails would be cumulative, unnecessary, and not reasonably calculated to locate additional records; there is no basis to conclude from the 94 responsive pages (included 85 pages of emails) already located that additional responsive information--to include other emails--reside elsewhere. (13) If the FBI had any information responsive to plaintiff’ s request, it is reasonably likely to be located within the FBI’s CRS or by going directly to the actual source. There are no other record systems within the FBI reasonably containing the requested information. (14) The FBI did not search the 33 categories of records that plaintiff requested for any of his FOIA requests. These searches are unreasonable and both unnecessary and burdensome. As described herein, the FBI conducted the searches of the CRS and offices most likely to have 7 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 8 of 32 responsive records for each of the requests - WSJ Article, 1% 1111 5-9; Brookings, SE 1] 10; and Harris, @111] 15-16. There is no basis to believe that records would reside elsewhere, and the FBI has no method to ascertain where records would be located in any event. For an explanation as to why further searches for responsive records for all three requests would be cumulative, redundant, and unduly burdensome and would not likely yield any responsive records, e 1111 1 1- 12, supra. SEARCH FOR RECORDS RESPONSIVE TO PLAINTIFF’S HARRIS CORPORATION EZQUEST (15) As stated in 1111 8-10 of the “Hardy Declaration Regarding Adequacy of Search for the Harris Corp. Request” of April 2, 2014, the FBI relied on the results of a three-pronged, focused search effort of multiple FBI offices to locate responsive records. The three-pronged3 3 Three Focused FOIA Searches: (E ECF #104) FOIA Search #1. By letter dated November 8, 201 l, a FOIA requestor sought “copies ofall documents and communication — including legal opinions, memoranda, briefs, training manuals, emails — related to ‘cell site simulators,’ ‘IMSI catchers,’ ‘digital analyzers,’ ‘TriggerFish,’ ‘StingRay,’ (both referring to the specific product sold by Harris Corporation and the generic use ofthe term for cell site simulators) Amberjack and other similar mobile phone surveillance and tracking devices” (hereinafter, the “Stingray request”). The scope ofthe “Stingray” request was for all requested records between January I, 2000 and November 8, 201 I. Before the assigned FOIPA analyst circulated an FBI Electronic Communication (“EC”) tasking FBI divisions and offices most likely to possess responsive records to perform a focused search, this analyst nevertheless conducted a standard CRS search using the Automated Case Support (“ACS”) application (E ECF #104,118 for a description ofACS) on December 19,2011 that failed to locate any responsive material. By EC dated February 29, 2012, RIDS tasked ve FBI HQ divisions reasonably likely to possess responsive records to search for the “Stingray request” material and to include any records located within the scope ofthe requested timeframe. The ve HQ divisions tasked to search for records included the Operational Technology Division, the FBI Laboratory, the General Counsel’s Of ce, the Training Division, and the Critical Incident Response Group (“CIRG”). FOIA Search #2. Pursuant to the EPIC FOIA request in litigation, EPIC v. FBI, No. l2-667 (D.D.C. Apr. 26, 2012) (hereirzafler, the “EPIC” request), a search EC dated May 23, 2012, was sent to seven FBI HQ divisions or of ces determined to possess potentially responsive material to the broad, multi-item “EPIC request.” Speci cally, the “EPIC request” sought “ I .) All documents concerning technical speci cations ofthe StingRay device or other cell site simulator technologies. 2.) All documents concerning procedural requirements or guidelines for the use of the StingRay device or other cell site simulator technologies (e.g. con guration, data retention, data deletion). 3.) All contracts and statements ofwork that relate to the StingRay device or other cell site simulator technologies. 4.) All memoranda regarding the legal basis for the use ofthe StingRay device or other cell site simulator technologies. 5.) All Privacy Impact Assessments or Reports concerning the use or capabilities ofthe StingRay device or other cell site simulator technologies.” The seven FBI divisions or of ces tasked to locate responsive records included: the Operational Technology Division, the FBI Laboratory, the General Counsel’s Of ce, the Training Division, the CIRG, the Criminal Investigative Division, and the Finance Division. As related to the ve of ces previously tasked to search per FOIA Search #1 noted above, those ve of ces were instructed ofthe broader scope ofthe 8 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 9 of 32 search methodolgy was a signi cant search undertaking by the FBI. At the outset, this robust search methodolgy was desinged to locate records in all FBI of ces where the FBI could reasonably expect responsive information to reside. As such, this search methodlogy employed an overlaping search of eight different FBI of ces who may possess responsive records given their missions and functions vis-a-vis the technical and operational nature of the information sought in the request. Moreover, the targeted eight different of ces--per our instructions-searched for responsive records in any format, including emails, which were also located and included in the over 20,000 pages of responsive records found. Given the comprehensive nature of this search in terms of substantive scope, format, locations searched, and the resulting identi cation ofa voluminous amount of responsive material in excess of 20,000 pages, the FBI has conducted a search reasonably calculated to locate responsive material. Although plaintiff requested more than 20 different storage devices/systems be searched, SQ 1111 I I-I4, gag, for an explanation as to why further searches for responsive records would be cumulative, redundant, and unduly burdensome. Given these extensive efforts, including the identi cation of e-mails, there is no basis to conclude from the 20,000+ responsive pages already located that additional responsive information would reside elsewhere. (16) If the FBI had any information responsive to plaintiffs request, it is reasonably likely to be located within the FBI’s CRS or by Electronic Communication (“EC”) sent directly to the FBI divisions and of ces most likely to possess responsive records to perform a focused subsequent EPIC request so that any responsive records they located would be included in their search results that began with FOIA Search #1. FOIA Search #3. During the course ofsearching for, and the gathering of, responsive material for the “EPIC request,” an additional FBI of ce was subsequently identi ed as possibly having potentially responsive records in early June 2012: The FBI Of ce ofPublic Affairs. Accordingly, a search EC was initiated on June 29,2012, tasking the FBI Public Affairs Of ce to search for the same material responsive to the broad “EPIC request” noted in FOIA Search #2, above. 9 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 10 of 32 search where the FBI has already located 20,000+ pages. There are no other record systems within the FBI reasonably containing the requested information. HARRIS CORPORATION _REQUEST EXEMPTION (Q)_(_7)_(E) — INVESTIGATIVE TECHNI()iS AND PROCEDURES (17) Exemption (b)(7)(E) protects records or infonnation compiled for law enforcement purposes when release “ would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. §552(b)(7)(E). The rst category ofthis exemption affords categorical protection to techniques and procedures used in law enforcement investigations; it protects techniques and procedures that are not well-known to the public as well as non-public details about the use of well-known techniques and procedures. Speci c Redactions for Investigative Techniques and Procedures (18) The FBI has asserted Exemption (b)(7)(E),4 and at times in CO1'ljLl1’lC'tlO1'l with b1,5 b3,6 and b4,7 to withhold information which affords “categorical” protection for techniques and 4 Exemption (b)(7)(E) alone is cited as a basis for withholding information on the following Bates pages: FBICELL I-4, 49-50, 52, 54, 55, 59, 61, 66, 70, 72-73, 94, 96-97, I08, I22, I25-I26, I28-I41, I43, I46-I47, I50-I61, I63, 165-167, I69, 171, 179, 180, 182-184, I88, 193-195, I99, 200-203, 206-2 I, 214-218, 220-226, 229-230, 232-233, 259-268, 290-292, 296-302, 334, 374, 376, 390, 393, 407, 446-447, 454, 457, 461-463, and 489-490. In addition, Exemption (b)(7)(E), in conjunction with Exemption (b)(5), are cited as a basis for withholding information on the following Bates pages: FBICELL-51, 53, 56-57, 60, 62, 67-69, 81, 95, and 104. Finally, Exemption (b)(7)(E), in conjunction with Exemptions (b)(4) and/or (b)(5), are cited as a basis for withholding information on the following Bates pages: FBICELL 63-65, 82, 224 and 226. 5 Exemption (b)(1) has been cited on the following pages: FBICELL-129, 259-260, 271-273, 275, 277, 279-281, 283-285, 287-289, 296, 312, 342-345, 370, 378, 392, 440-445, 448-450, 455, and 460-461. The information withheld was so intermingled that no non-exempt material was segregable for release. 6 Exemption (b)(3) was asserted, in conjunction with Exemption (b)(7)(E), as a basis for withholding information on the following Bates pages: FBICELL-2, 5-I4, 96, 109-121, 123-I27, 148, 160-163, I68, I72-I77, 185-192, 195198, 202, 206-207, 209-210, 217, 227-231, 247-250, 252-253, 258, 269-278, 282, 286, 293, 298-299, 301, 303-305, 307-308, 310-31 I, 322-325, 350-373, 379-387, 389, 391, 394-406, 408-412, 414-440, 444, 447-448, 451-453, 456, 458, 464-487, 491, 507-510, and 516. The information withheld was so intermingled that no non-exempt material was segregable for release. In addition, Exemption (b)(3) was asserted, in conjunction with Exemption (b)(7)(E), l0 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 11 of 32 procedures used in law enforcement investigations or prosecutions. (I9) As the Court is aware, the FBI divided Exemption (b)(7)(E) exempt material into two general categories: information related to the use ofcell-site simulator technology ( rst category), and information related to secure FBI E-mail Addresses, Faxes, Telephone Numbers and Building/Of ce Locations (second category). The Court held the FBI met its burden to justify withholding with respect to the second category of 7E information; however, the Court held with respect to the remainder of the information being withheld ( rst category) that the FBI failed to provide adequate information “about the documents withheld and the information withheld in particular documents,” thus the FBI failed to “establish a rational nexus between its law enforcement function and the information being withheld.”8 Order of November 14, 2014, pg 52. Accordingly, a more particularizedjusti cation for the type of material withheld under the rst category of Exemption (b)(7)(E) is provided below to address the Court’s concems without divulging the very exempt law information that the FBI seeks to protect. (b)(7)(E) Category Breakdown (20) As a preliminary matter, the approximate 500-page sample selected by EPIC9 that is also before this Court was the product of an agreement between the parties in that suit and with underlying Exemption (b)(5), as a basis for withholding information on the following Bates pages: FBICELL 98-102, 293-295, 309, 388, 393, 454-455, 457, 459, and 515. The information withheld was so intermingled that no non-exempt material was segregable for release. 7 Exemption (b)(4) has been asserted on the following pages: FBICELL-15-48, 63-65, 82-93, 135, 152,224,226, 234, 236-242, 244-245, 251, 254-257, 313-316, 318-321, 326-333, 338-341, 346-349, 362,41 1, 493-506, and 511514. The information withheld was so intermingled that no non-exempt material was segregable for release. 8 Further explanation of(b)(7)(E) is provided herein for the following Bates pages: FBICELL I-18, 21, 24-57, 5972,81-102,104,108-133,135-141,144-152,155-157,160-163,165-169,171-I77,180,182-203,206-211,214218, 220-234, 236-242, 244-245, 247-266, 268-296, 298-301, 303-305, 307-316, 318-334, 338-341, 346-373, 376, 378-397, 399-412, 414-487, 489-491, and 493-516. 9 EPlC’s Vaughn Sample List contained twenty-eight sampling requests concerning parts ofthe thirteen FOIA releases. The nal sampling consisted of5 16 Bates pages. Because the sampling methodology was done by page number and not on a document basis, some sample pages are excerpts from the documents from which they were derived for sampling. ll Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 12 of 32 focused on the FBI’s withholding of material under Exemption (b)(3) in conjunction with (b)(7)(E). The rst category of material relating to the application of cell-site simulator technology as a law enforcement technique and its associated procedures was further divided into seven sub-categories. This categorical sub-division was designed to provide a review mechanism whereby the FBI could provide enough detail to sustain its burden to justify withholding this sensitive material without providing a level of detail that would disclose exempt material. Again, these seven sub-categories include: (a) the development of the technology as a law enforcement tool; (b) the facts and circumstances relating to the employment or contemplated use of this technique; (c) procedural matters associated with the use of this technique; (d) technical speci cations; (e) speci c types of products that are utilized or may be utilized in the future; (1) sensitive terms and de nitions speci c to the FBI relating to the application of these devices in collecting data in current and/or potential future investigations; and (g) information that would expose the scope, direction, level of cooperation, and expertise related to the cell-site technology techniques and procedures. '0 (b)(7)(E) Category C ross-Referenced by Document Type (21) To provide the Court with more information about the nature of the documents withheld in relation to the previously identi ed seven sub-categories of 7E material, the FBI reexamined the sample material and further broke it down by document type, placing them into ve document categories as follows: I0 The seven categories ofExemption (b)(7)(E) material asserted to protect detailed information about the application ofcell-site simulator technology is located on the following Bates pages: FBICELL 1-18, 21, 24-57, 5972,81-102,104,108-133,135-141,144-152,155-157,I60-163,165-169,171-I77,l80,182-203,206-2I1,214218, 220-234, 236-242, 244-245, 247-266, 268-296, 298-301, 303-305, 307-316, 318-334, 338-341, 346-373, 376, 378-397, 399-412, 414-487, 489-491, and 493-516. 12 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 13 of 32 a.) Policy and Procedural records;ll b.) Training and Presentation records; c.) Operator Manuals and User Guides;'2 d.) Internal FBI Correspondence”; and, e.) Procurement and Funding related records. (22) Given the scope and nature of the sampled records, the sensitive nature of the material in terms of the signi cant harm triggered by disclosure, and the overlap of a national security withholding statute to much ofthis material per Exemption (b)(3),l4 the FBI has determined it cannot provide more speci c detail about the withheld documents themselves without divulging exempt information pertaining to the FBI’s use of cell-site simulator technology. The below chart provides the Court a breakdown of each of the sampled record pages by document category and then cross-references them to the seven sub-categories of (b)(7)(E) type information within each page. a b '7 E b- t -- ( )( )( 5) Su ca egory ——~— b c d e f g 1_Policy&ProceduresH x x x x 5-8 Policy & Procedures x x x W x x x x 9-14 Policy & Procedures x _ x x x x x x 15-17 Training/Presentation x x x x x x x Bates Pages l-4 _ Document Category ' L 1 x A 1 I ll Examples of Policy and Procedures — step-by-step determination of meeting the threshold for utilizing techniques; step-by-step procedures needed prior to use device for tracking; information collection, retention, storage and authority; information/evidence collection, analyze, targeting/surveillance, and company cooperation; collection and dissemination of evidence. '2 Manuals that contained a copyright sample page for Harris Corporation contain the following statement — “Harris Corporation proprietary information, which is exempt from disclosure under FOIA (See FAR 22-202). No part of this manual may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information recording and retrieval systems, for any purposes, without the express written consent of Harris Corporation.” Non-Harris U.S. Govemment Primary Contractor manuals contain the following statement: Proprietary Information. '3 Types of FBI internal correspondence - emails, electronic communications, mission statement, memo, and routing Sllp. “‘ National Security Act of 1947 [50 u.s.c. § 3024-1 (i)(I)] 13 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 14 of 32 Document Category Bates Pages (b)(7)(E) sub-category ' a b c e f g 18 Operator '.\/Ianua /Lser Guide x if 21 Operator \/Ianuaf/1.'ser Guide x X 24-26 Operator Vlanua /Lser Guide x Operator .‘\/tantra./User Guide x X Operator .\/Ianuai/'.js_er Guide x X 34-36 Operator .'\/Ianua /User Guide x X 37-40 Operator .\/Ianual/Ijser Guide x X 41-44 Operator N1 an uaT.Iser G uide x X 45-48 Operator Tv1anuaT/Ijser Guide x X 49-57 Policy & Procedures x X X X 59-70, 70-73, & 81 Policy & Procedures x X X X 82-85 Training/Presentation x 86-89 Operator Manual/User Guide 90-93 TrainingPresentation x 94-96 Intemal FBI Correspondence x X X X X Procurement/Funding x X X X X T00-101 Procurement/Funding x X X X X I02 Procurement/Funding x X X 104 P9'i9r&Pt9¢¢dut@$--- - I08-124 Intemal FBI Correspondence x X X X X 27-29 7 30-33 97-99 7 T X X X W xw X X X I25-129 Intemal FBI Correspondence x X X X X I30-133,135-141,144-148,150 52,l54,l55-l57,l60-l63,l65I69,171-177,180,182-190,191 193,194-l95,l96-200,20l203,206-211,214-218,220-222 Training/Presentation x X X X X 234,236-241 Operator Manual/User Guide x X 242,244-245 Operator Manual/User Guide x X 247-249 Operator Manual/User Guide x X 250 Internal FBI Correspondence x X X 251 Procurement/Funding x X 252-253 Training/Presentation x X 254-257 Training/Presentation x 258 Training/Presentation x X X 259 Internal FBI Correspondence x X X 260 Procurement/Funding x X X X Procurement/Funding x X X X X Procurement/Funding x X X X X 261-262 263-266, 268 I 14 X X X X X X X Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 15 of 32 Bates Pages Document Category ' a (b)(7)(E) sub-category —* e b c d e f * 8 269-289 Procurement/Funding _ X 290-292 Training/Presentation _ X 293-295 Internal FBI Correspondence X 296 Internal FBI Correspondence 298-301 Internal FBI Correspondence 303 Training/Presentation 304 Training/Presentation X X 305, 307 Operator Manual/User Guide X X 308 Training/Presentation X 309 Training/Presentation X X X 310 Training/Presentation X X X 311 Procurement/Funding X X X 312 Intemal FBI Correspondence___ X X X X 313-315, 318-321 Operator Manual/User Guide X X 322-325 Intemal FBI Correspondence X X X X 326-32_9 D.uP;_i9%3.8-24.1 Operator Manual/User Guide 330-333 Dup. 254-257 X X X X X X X X X X X X X X Training/Presentation X X X X X X 334 Procurement/Funding 338-341 Training/Presentation 346-349 Training/Presentation X 350 Procurement/Funding X X X Training/Presentation X X X 351 Dup t0310 X X X X X X 352-353 Internal FBI Correspondence X X X X 354-357 Procurement/Funding X X X X 358-362 Internal FBI Correspondence X X X X 363-368 Operator Manual/User Guide X X X X 369 Internal FBI Correspondence X X X X 370-371 Procurement/Funding X X X X 372-3 73 Internal FBI Correspondence X X X 376 Internal FBI Correspondence X 378-392 Training/Presentation X X X 393 Internal FBI Correspondence X X X 394-396 Procurement/Funding 397-398 Operator Manual/User Guide X X X X 15 X X Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 16 of 32 7 Bates Pages T 7 7 Document Category (b)(7)(E)sub-category b _ c d 6 8 X X X X X X X 399-404 Dup. to 303-368 Operator Manual/User Guide 405 Operator Manual/User Guide 406-412 Internal FBI Correspondence X X X X 414-438 Training/Presentatjon X X X X 439 Procurement/Funding X 440-445 Procurement/Funding X X X 446 Procurement/Fgunding 447 Operator Manual/User Guide X 448-450 Procurement/Funding 451-453 X X X X X X X X >5 Procurement/Fund ing_ X X X 454-455 Intemal FBI Correspondence X X X X 456 Procurement/Funding X X X X 457-460 Intemal FBI Correspondence X X X X 461-462 Internal FBI Correspondence X X X 3 463-487 Training/Presentation X X X X 489 Intemal FBI_Correspondence X 490 Intema1FBI Correspondence X 49 r_ Procurement/Funding X X X X 493-495 Operator Manual/User Guide X X 496-498 Operator Manual/User Guide X X 499_-502 Operator Manual/User Guide X X 503-506 Training/Presentation X X 507-510 Operator Manual/User Guide X X Operator Manual/User Guide X X 514 Operator Manual/User Guide X X 515 Internal FBI Correspondence X X 516 Internal FBI Correspondence X X 511-513 Dup. to 30-32 X RISK OF CIRCUMVENTION (23) While the existence of cell-site technology information in the ve document categories identi ed above is a general law enforcement technique that is publically known, the detailed information about its application as identi ed in the seven sub-categories of 7E type 16 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 17 of 32 information within the ve document categories is not publically known. Despite the categorical protection afforded by the exemption, the release of the withheld information from these seven sub-categories signi cantly risks circumvention ofthe law, triggering immeasurable harm to law enforcement and national security operations. The FBI is aware that Intemet bloggers are already outlining ways to try to circumvent the government’s cellular locating and identifying capabilities.” As a practical matter, disclosure would enable potential targets to carefully plan their illicit activities and execute them in a manner that avoids detection, thereby effectively neutralizing the FBI’s ability to use the technique. g Declaration of David Hardy Regarding the Harris and EPIC Request 1173. Moreover, while some pieces ofinformation the FBI is withholding under these sub-categories--in combination with other exemptions where applicable-may appear innocuous in isolation, the pieces of information can be assembled in mosaic fashion to reverse engineer the FBI’s use of these techniques and procedures, thereby genuinely enhancing the risk of circumvention and aiding potential lawbreakers and terrorists to avoid detection. As such, the FBI properly withheld this information pursuant to Exemption (b)(7)(E). REPROCESSING OF ENTIRE BODY OF THE HARRIS CORPORATION REQUEST (24) The FBI made three separate releases to plaintiff in the reprocessing of the entire body of documents responsive to plaintiffs request for the so-called “dirty words.” The FBI processed records in batches of approximately 500 pages pursuant to its Interim Release Policy (“IRP”). (25) By letter dated March 3, 2015, the FBI released 482 pages to plaintiff. The FBI indicated that it had reviewed 3,783 pages of material responsive to plaintiffs request. Plaintiff '5. In his Motion for Partial Summary Judgment and Supporting Memorandum led September 4, 2013, the Plaintiff hrmselfprovrdes support for this rationale on page 11 of ECF #42. By identifying the technique that is being used or can be used in too much detail, the FBI would provide the very gateway to circumvention that Plaintiff seeks. 17 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 18 of 32 has 30 days from the date of this letter to pay $95.00 for the 7 CDs. Furthermore, the FBI indicated that it had withheld information pursuant to FOIA Exemptions (b)(I), (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). (k Exhibit A.) The FBI received payment of $95.00 on March 30, 2015. (26) By letter dated March 31, 2015, the FBI released 672 pages to plaintiff. The FBI indicated that it had reviewed 5,828 pages of material responsive to plaintiffs request. Plaintiff has 30 days from the date of this letter to pay $165.00 for the 11 CDs. Furthermore, the FBI indicated that it had withheld information pursuant to FOIA Exemptions (b)(I), (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). (k Exhibit B.) To date, the FBI has not received payment of$165.00. (27) By letter dated April 13, 2015, the FBI released 3,417 pages to plaintiff. The FBI indicated that it had reviewed 1 1,810 pages of material responsive to plaintiffs request. Plaintiff has 30 days from the date of this letter to pay $285.00 for the 19 CDs. Furthermore, the FBI indicated that it had withheld information pursuant to FOIA Exemptions (b)(I), (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). 6% Exhibit C.) To date, the FBI has not received payment of $285.00. (28) Plaintiff agreed to pay standard duplication fees (ECF #128) and is currently delinquent on the last two payments totaling $450.00. (29) The same methodology employed to reprocess the 500-page sample records for the so-called “dirty words” was also employed to reprocess the remaining body of records that were recently released. The 500-page sample was created in order to provide EPIC with a sample of what a re-processing ofthe entire request would look like in light ofthe FBI’s acknowledgment of the “dirty words” as EPIC had already received its documents before the FBI 18 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 19 of 32 acknowledged the “dirty words.” EPIC decided not to proceed further after receiving the sample. SEGREGABILIIY (30) Plaintiff has now been provided all responsive non-exempt records or portions of records responsive to his FOIA request to the FBI. During the processing ofplaintiffs request, each responsive page was individually examined to identify non-exempt information that could be reasonably segregated from exempt information for release. All segregable information has been released to plaintiff. As demonstrated herein, the only information withheld by the FBI consists of information that would trigger reasonably foreseeable harm to one or more interests protected by the cited FOIA exemptions. CONCLUSION (31) This declaration provides an explanation of the FBI’s search of plaintiffs WSJ request and why an individualized search query outside of the CRS system was conducted. That CRS search yielded no responsive records. The FBI determined that any further search for archived emails or other records would be cumulative, unnecessary, and unduly burdensome, as there is no basis to conclude that responsive information would reside elsewhere. The Harris Corporation request search relied on the results of a three-pronged focused search effort of multiple FBI of ces, as well as a CRS search, to locate responsive records. This search yielded a voluminous amount of responsive material in excess of 20,000 pages. There is no basis in fact for the FBI to reasonably conclude that responsive information would reside elsewhere. The FBI determined that further searches for responsive records would be cumulative, redundant, and unduly burdensome. For the Harris request, the FBI further describes the (b)(7)(E) category breakdown to address the Court’s concerns without divulging the very exempt law enforcement 19 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 20 of 32 information that the FBI seeks to protect. The rst category of material relating to the application of cell-site simulator technology as a law enforcement technique and its associated procedures was further divided into seven-subcategories. To provide the Court with more information about the nature ofthe documents withheld in relation to the previously identi ed seven sub-categories of 7E material, the FBI further broke it down into ve document types. A chart provides the Court a breakdown of each of the sampled record pages by document category and then cross-references them to the seven-subcategories of (b)(7)(E) type information within each page. The FBI has determined it cannot provide more speci c detail about the withheld documents without divulging exempt information pertaining to the FBI’s use of the cell-site simulator technology. For the Harris Corporation request, the FBI reprocessed responsive material in excess of 20,000 pages using the same methodology employed in processing the 500 page sample for the so-called “dirty words.” The FBI made three separate releases to plaintiff on 37 CD’s per the IRP totaling $545.00. To date, the FBI has only received payment of $95.00 leaving plaintiff delinquent $450.00 Pursuant to 28 U.S.C. §l746, I declare under penalty of perjury that the foregoing is true and correct, and that Exhibits A through C attached hereto are true and correct copies Executed this Z Q ffxjay of May, 2015. »-5 \ \. ~ -- _ 4-é<';£/l [)E1\1N1S ,\AR (gill ‘ Assistant Section hie Record/Information Dissemination Section Records Management Division Federal Bureau of Investigation Winchester, Virginia 20 Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 21 of 32 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA DANIEL DAVID RIGMAIDEN LilxiLg Plaintiff, Civil Action No. 12-cv-01605 V. FEDERAL BUREAU OF INVESTIGATION, et. al., Defendants. Lil \i)\__J LilLi)yd\__) LilyiyLg EXHIBIT A Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 22 of 32 U.S. Department of Justice T Federal Bureau of Investigatiorl Washington, D.C. 20535 T March 3, 2015 MR. DANIEL DAVID RIGMAIDEN 530 EAST MCDOWELL ROAD SUITE ‘I07-214 PHOENIX, AZ 85004 FOIPA Request No.: 1212582-O01 Subject: WIRELESS DEVICE LOCATORS MANUFACTURED BY HARRIS WPG Dear Mr. Rigmaiden: The enclosed documents on seven CDs were re-reviewed under the Freedom of Information/Privacy Acts (FOIPA), Title 5, United States Code, Section 552/552a. Deletions have been made to protect information which is exempt from disclosure, with the appropriate exemptions noted on the page next to the excision. In addition, a deleted page information sheet was inserted in the le to indicate where pages were withheld entirely. The exemptions used to withhold information are marked below and explained on the enclosed Explanation of Exemptions: Section 552 Section 552a 17 (b>(1) F lbI17)(A) 1-, (b)(2) l[b)i[7)i[B) r“ (d)(5) 17 (b)(3) [7 rbjtmrc) 1"‘ (k]i(1) 17 *Ibl‘17lIE) IT I1<1'I3l (j)(2) 1" IblI7l*lF) 1" 110141 1 ‘; (b)(4) 1" t[b)(8) I" (k)t[5) 17 (b)(5) IT (W191 IT 1110161 T7 (b)(6) 1" (k)(7) 3783 pages were reviewed and 482 pages are being released. 1* Document(s) were located which originated with, or contained information concerning, other Government agency(ies) [OGA]. 1- This information has been referred to the OGA(s) for review and direct response to you. 1- We are consulting with OGA(s). The FBI will correspond with you regarding this information when the consultation is nished. IT . . In accordance with standard FBI practice and pursuant to FOIA exemption (b)(7)(E) and Privacy Act exemption (j)(2) [5 U.S.C. § 552/552a (b)(7)(E)/(j)(2)], this response neither con rms nor denies the existence of your subject's name on any watch lists. Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 23 of 32 For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. §_e§ 5 U.S. C. § 552(0) (2006 & Supp. IV (2010). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard noti cation that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. Enclosed for your information is a copy of the Explanation of Exemptions. J EAlthough your request is in litigation, we are required by 5 § 552 (a)(6)(A) to provide you the following information concerning your right to appeal. You may appeal by writing to the Director, Of ce of Information Policy (OIP), U.S. Department of Justice,1425 New York Ave., NW, Suite 11050, Washington, D.C. 20530-0001, or you may submit an appeal through OlP’s eFOlA portal at http://wwwjusticegov./otp/efoia-porial.html. Your appeal must be received by OIP within sixty (60) days from the date of this letter in order to be considered timely. The envelope and the letter should be clearly marked “Freedom of Information Appeal.” Please cite the FOIPA Request Number assigned to your request so that it may be easily identi ed. l— The enclosed material is from the main investigative le(s) in which the subject(s) of your request was the focus of the investigation. Our search located additional references, in les relating to other individuals, or matters, which may or may not be about your subject(s). Our experience has shown when ident, references usually contain information similar to the information processed in the main le(s). Because of our signi cant backlog, we have given priority to processing only the main investigative le(s). If you want the references, you must submit a separate request for them in writing, and they will be reviewed at a later date, as time and resources permit. I7 See additional information which follows. Sincerely, 'B» =.l=l/5 David M. Hardy Section Chief Record/Information Dissemination Section Records Management Division Enclosure(s) The enclosed documents represent the rst interim release of information responsive to your Freedom of Information Act (FOIA) request. Additional releases will follow. Upon receipt of the enclosed CDs, please go to www.pay.gov to make an electronic payment*, or make a check or money order payable to the Federal Bureau of Investigation in the amount of $95.00 ($15 per CD at 7 CDs less $10 free credit) and remit payment to the Work Process Unit, Record/Information Dissemination Section, Records Management Division, Federal Bureau of Investigation, 170 Marcel Drive, Winchester, VA 22602. Please include the FOIPA Request Number(s) with your payment. Failure to pay for this release within thirty (30) days from the date of this letter will close any pending FBI FOIPA requests from you. Nonpayment will also cause an automatic denial of any future FOIPA requests. *Pay. gov is a secure web-based application that accepts credit card and ACH payments online, and is hosted by the United States Department of Treasury, Financial Management Service. For frequent FOIPA requesters, it is recommended to create a Pay. gov account to retain an on/ine history ofpayments made through Pay. gov and to retain speci c information for future payments. To make an electronic payment, complete the FBI Freedom of /nfonnation Act and Privacy Act FONT) located on Pay. gov. P/ease note: if a refund is necessary, there is less processing time to refund a credit card payment than an ACH payment. Case 2:12-cv-01605-DLR-BSB Document 137-1 Filed 05/20/15 Page 24 of 32 EXPLANATION OF EXEMPTIONS SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552 (b)(1) (A) speci cally authorized under criteria established by an Executive order t.o be kept secret in the interest ofnational defense or foreign policy and (B) are in fact properly classi ed to such Executive order; (b)(2) related solely to the internal personnel nules and practices ofan agency; (b)(3) speci cally exempted from disclosure by statute (other than section 552b ofthis title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; (b)(4) trade secrets and commercial or nancial information obtained from a person and privileged or con dential; (b)(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency: (b)(6) personnel and medical les and similar les the disclosure ofwhich would constitute a clearly unwarranted invasion ofpersonal privacy; (1>)(7) records or information compiled for law enforcement purposes, but only to the extent that the production ofsuch law enforcement records or information ( A ) could reasonably be expected to interfere with enforcement proceedings, ( B ) would deprive a person ofa right to a fair trial or an impartial adjudication, ( C ) could reasonably be expected to constitute an unwarranted invasion of personal privacy, ( D ) could reasonably be expected to disclose the identity ofcon dential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a con dential basis, and, in the case ofrecord or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a con dential source, (E ) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or( F ) could reasonably be expected to endanger the life or physical safety of any individual: (b)(3) contained in or related to examination. operating, or condition reports prepared by, on behalfof, or for the use ofan agency responsible for the regulation or supervision of nancial institutions; or (b)(9) geological and geophysical information and data, including maps, concerning wells. SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552a ( I7 (b)(3) 50 USC §3024(i)('l 17 (b)(4) F7 (b)(5) T7 (b)(6) F" T“ I7 I“ I7 I“ F I“ l[b]il[7)l[A) itbl-WIB) lb}-IEYIIC) lib}-W0) i{bli[71~'lE) ~lb1-WP) lbll8l Section 552a 'ld)(5) 1 in Ii Ii i ,k)i[’l ) tklllzl (k)(3) [I