UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE, US. Department of Justice Federal Bureau of Investigation ‘Wasngin, DE BSS-00T August 17, 2012 Peter Newsham Assistant Chief ‘Metro DC Police Department 300 Indiana Ave, NW, #3132 ‘Washington, DC 20001 Re: Acquisition of Wireless Collection Equipment/Technology and Non- Disclosure Obligations IAW ENFORCEMENT SENSITIVE (LES: The information in thir document ie the property of the Federal Burcou of Imesigation (FBI) and moy be diribued within the Federal Government (and its contactors) US ineligenc, law ‘nforcement, public softy or protection officals and individuals with a need to now. Disribulon beyond these ets without FBI Operational Technology Division authorization is prohibied. Precauions shoul be taken (0 ensure Ihs Information fs ‘Hored and/or destroyed in a manner that precludes unauthortzed access. Infraction bearing he LES caveat nay no! be wed i ‘egal proceedings without fst recevingauborzation from the originating agency. Recipients are prohibited from subseguenly posting the information marked LES ova website onan unclaafednenwork, Dear Assistant Chief Newsham: We have been advised by Harris Corporation of the Metro DC Police Department's request for acquisition of certain wireless collection equipmenttechnology manufactured by Harris Corporation. Consistent with the conditions on the equipment authorization granted to Harris Corporation by the Federal Communications Commission (FCC), state and local law enforcement agencies must coordinate with the Federal Bureau of Investigation (FBI to complete this non-disclosure agreement prior to the acquisition and use of the equipment/technology authorized by the FCC authorization. AS you are aware, law enforcement agencies increasingly rely on wireless collection cquipmentitechnology to conduct lawfully-authorized electronic surveillance. Disclosing the existence of and the capabilities provided by sich equipmenttechnology to the public would. reveal sensitive technological capabilities possessed by the law enforcement community and may allow individuals who are the subject of investigation wherein this equipmentitechnology is used to employ countermeasures to avoid detection by law enforcement. This would not only potentially endanger the lives and physical safety of law enforcement officers and other individuals, but also adversely impact criminal and national security investigations. That is, UNCLASSIFIED/LAW ENFORCEMENT SENSITIVE Page 1of6UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE, disclosure of this information could result in the FBI's inability to protect the public from terrorism and other criminal activity because, through public disclosures, this technology has been rendered essentially useless for future investigations. In order to ensure that such wireless collection equipmentitechnology continues to be available for use by the law enforcement community, the equipmenvtechnology and any information related to its functions, operation, fand use. shall be protected from potential compromise by precluding disclosure of this information to the public in any manner including but not limited to: in press releases, in court documents, during judicial hearings, or during other public forums or proceedings. Accordingly, the Metro DC Police Department agrees to the following conditions in connection with its acquisition and use of the Harris Corporation equipmentitechnology: 4-By-entering into this-agreement, the- Metro D€-Potice- Department affirms that it thas statutory authority to lawfully employ this technology and will do so only in support of public safety operations or criminal investigations. 2, The Metro DC Police Department assumes responsibility for operating the equipmenviechnology in accordance with Federal law und regulation and accepts sole liability for any violations thereof, irrespective of the Federal Bureau of Investigation approval, if any, forthe sale of the equipmentitechnology. i ensure that operators of the equipment have met the operator training standards identified by the FBI and are certified to conduct operations, 4. ‘The Metro DC Police Department will coordinate with the FBI in udvance of its use of the wireless collection equipmentitechnology 10 ensure de-confliction of respective missions, 5. The Metro DC Police Department will not distribute, disseminate, or otherwise disclose any information concerning the wireless collection equipmenttechnology or any software, operating manuals, or related technical documentation (including its technical/engineering description(s) and capabilities) to the public, including to any non- Jaw enforcement individuals or agencies, 6. The Metro DC Police Department will not distribute, disseminate, or otherwise disclose any information concerning the wireless collection equipmenttechnology or any software, operating manuals, or related technical documentation (including its technical/engineering description(s) and capabilities) provided to it to any other law enforcement or government agency without the prior written approval of the FBI. Priot to any approved distribution, dissemination, or comparable disclosure of any information concerning the wireless collection equipmenttechnology or any software, manuals, or related technical documentation related to such cquipment/technology, all materials shall be marked “Law Enforcement Sensitive, For Official Use Only - Not to be Disclosed Outside of the Metro DC Police Department.” UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE, Page ofUNCLASSIFIED//LAW ENFORCEMENT SENSITIVE 7. The Metro DC Police Department shall not, in any civil or criminal proceeding, use or provide any information conceming the Hurris Corporation wireless collection equipmenvtechnology, its associated software, operating manuals, and any related documentation (including its technicaV/engincering description(s) and capabilities) beyond the evidentiary results obtained through the use of the equipmenvtechnology including, but not limited to, during prestrial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure, in other affidavits, in grand jury hearings, in the State's case-in-chief, rebuttal, or on appeal, or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI. Ifthe Metro DC Police Department leas that a District Attorney, prosecutor, or a court is considering or intends to use or provide any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating ‘manuals, and any related documentation (including its technical/engineering description(s) and capabilities) beyond the evidentiary results obtained through the use of the equipmenvtechnology in a manner that will cause law enforcement sensitive information relating to the technology to be made known to the public, the Metro DC Police Department will immediately notify the FBI in order to allow sufficient time for the FBI {0 intervene to protect the equipmentitechnology and information from disclosure and potential compromise, ‘Notification shall be diected to the attention of: and 8. In addition, the Meto DC Police Department will, at the request of the FBI, seck dismissal of the case in lieu of using or providing, or allowing others (o use or provide, any information concerning the Harris” Corporation wireless collection, equipmenttechnology, its associated software, operating manuals, and any related documentation (beyond the evidentiary results obtained through the use of the ‘equipmenttechnology), if using or providing such information would potentially or actually compromise the equipmentftechnology. This point supposes that the agency has some control or influence over the prosecutorial process, Where such is rot the case, or is limited so as to be inconsequential, it is the FBI's expectation that the law enforcement UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE Page 306610 nl. UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE, agency identify the applicable prosecuting agency, or agen agreement ies, for inclusion in this A copy of any cour onder in any proceeding in which the Metro DC Poliee Department is @ party directing disclosure of information concerning the Harcis Corporation equipmenticchnology and any associated software, operating manuals. or related documentation (including its technical/engineering descripion(s) and capabilities) will immediately be provided (o the FBI in order to allow suficen time forthe FBI to intervene (0 protect the equipmenttechnology and information from disclosure. and potential compromise, Any such court orders shal be directed tothe attention of => fureau of Investigation en r ‘The Metto DC Police Departinent will aot publicize its acquisition or use of the Harris, Corporation equipmentiechnology or any of the capabilities afforded by such equipmentiechnology to the public, other law enforcement agencies, or other government agencies, including, but not limited to, in any news or press releases, Interviews, or ditect of indirect statements to the medi {hn the event that the Metro DC Police Department receives a request pursuant to the Freedom of Information Act (5 U.S.C, § 552) or an equivalent state or local law, the civil cor criminal discovery process, or other judicial, legisiative, or administrative process, to isclose information concerning the Harris Corporation wireless collection equipmenvtechnology, its associated software, operating manuals, and any related documentation (including its technicaV/engineering description(s) and capabilities), the Metro DC Police Department will immediately notify the FBI of any such request telephonically and in writing in order to allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels. Notification shall be directed to the attention of: mM Investigation UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE Page dof 6UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE and UNCLASSIFIBD/LAW ENFORCEMENT SENSITIVE Pago $ ofUNCLASSIFIED//LAW ENFORCEMENT SENSITIVE ‘The Metro DC Police Department's acceptance of the above conditions shall be evidenced by the signatures below of an authorized representative and wireless collection equipment operalors of the Metro DC Police Department, Sincerely, | el moaltbthar AssBtantChiet Metco DC Polive Department UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE, Page ooTeIssue on Thu, 17 Ape, 2014 ‘supe! HARRIS CORPORATION 4025 W. NASA BLVD, MELBOURNE, FL32019 Unie States Phone: 1321 727 5301 Fax 1224727 9677 onc ship To sit: florian Police Deparment Eetepatan Poe Depart 59 on A nn 305) Sho Wehan Arrae Na Bn 308 ‘acongun 2008 ‘asangon oo co onic ees Utes Sts Pree at) Ya-a58 bane Te equator Dever Ostet. 2014 Preno Ra8s3360V2 20Toco fused in cogulatiemeem act ard, purchase oder is placed in accordance wth al provisions of Contract Number: NIA Wem Action Description Pan Unit Gly Need By UnitPrice Extended Amount Number 1 Netiet EEE Thine tered. HIRI “299-0 be provided at MPD facty during te month of June 2014 Nem Action Detertption Part Unit Gry Neod By —UnitPrice Extended Amount Numbor Notes NE Teiiva- toe povted mr. A oo coo. IN USO 2014 [REE "2-0-0. provided at MPD fecty during the month of June 2014 Total $76,000.00 USD Changes ‘© Line tem 1, Accounting, Accounting 1, Unpaid Balance changed rom to (70 value) ‘© Line tem 2, Accounting, Accounting 1, Unpald Balance changes ron I to (no value) ‘© ERP Order Comments changes trom (ne value) to Revised Delvery Dae: June 15,2014Refer to quote number QTEB779.04808 ‘¢ ERP Order Comments changed fom (no value) to Hats providing taining tthe customers faity in Washinglon DC atthe agreedto pce oI Vi referenced quote ‘© ERP Order Comments changed fom ALL INVOICES SHALL BE SUBMITTED TO THE ‘BILL TO" ADDRESS INDICATED ON THIS EUROHASE SDE, VOCS Si NELUDE THE PURE SE ONDER NIMBER, CONTRACT NUMBER (F APPLICABLE, ‘CONTRACTOR'S NAME AND ADORESS, INVOICE DATE, QUANTITY AND DESCRIPTION OF 5) (val ‘© ERP Order Comments changed rom FOB is Destination unless specied otherwise lo (no value) ERP Order Comments changed from **™"GOVERNMENT OF THE DISTRICT OF COLUMBIA STANDARD CONTRACT PROVISIONS FOR USE WITH THE DISTRICT OF COLUMBIA GOVERNMENT SUPPLY AND SERVICES CONTRACTS (Ju 2010) ARE HEREBY INCORPORATED BY REFERENCE, WWIW.OGP DG GOV" to no vale) ERP Order Comments changed ftom The Commady Group Manager or tis purchase i It ro vais) ERP Onder Tite changed fom FY 4} Tivo FY 4 AOR System Tranny ‘© Line em 1, Accounting, Accounting 1, EfectveDateSting changed rom 04/10/2016 to 0907/2014 Line Hem 1, Desengion, Full Description changed ror EE Trang o EER Tasng- oe proved a MPD fay during the mont of ine 2014 Line tem 2, Accounting, Accounting 1, EectiveDateSting changed tm 04/10/2014 to 0407/2014 + Line lem 2, Desrigon, Ful Desron changed f Tinea oI Tang toe provided t MPD tacit cutng ne ‘month of June 2014 —, 1© ERP Order TimeCreate changed fom Thu, 10 Ape, 2044 to Thu, 47 Apr, 2014 Comments owtor2014 Date: June 15,2014 Refer o quote number QTE6770 400 Thu, 10 Apr, 2014) © COMMENT by a0 72 on tine comer, lacy in Washinion DC alte as ie TI ve reterenced que ‘i, AT Apr, 2014) “ ‘© COMMENT by arbasystem on 0417/2014 "GOVERNMENT OF THE DISTRICT OF COLUMBIA STANDARO CONTRACT PROVISIONS FOR USE WITH THE DISTRICT OF COLUMBIA GOVERNMENT SUPPLY AND SERVICES CONTRACTS (July 2010) ARE HEREBY INCORPORATED BY REFERENCE. WwW. OCP.0C, GOV" arbasysem, Th, 17 Ape, 2014), —— COMMENT by anasystam on 0417/2014 The Commosiy Group Manager fr this purchase rm Th, 17 Apr, 2014) © COMMENT: Jon ows7r2014 FOB is Dessnabon uness specied otherwise MI Th, 17 Apr, 2014) ‘¢ COMMENT by arbasystemon 04/17/2014 ALL INVOICES SHALL 8E SUBMITTED TO THE"BILL TO" ADDRESS INDICATED ON THIS PURCHASE ORDER. INVOICES SHALL INCLUDE THE PURCHASE ORDER NUMBER, CONTRACT NUMBER (IF APPLICABLE), CONTRACTOR'S NAME AND ADDRESS, INVOICE DATE, QUANTITY AND DESCRIPTION OF GOOD(S) OR SERVICE(S) FOR WHICH PAYMENT IS BEING REQUESTED, REMITTANCE ADORESS, AND CONTACT PERSON NAME AND PHONE NUMBER IF THERE IS A PROBLEM WITH THE INVOI INVOICES FOR QUANTITIES OF AMOUNTS GREATER THAN WHAT IS STATED ON THE PURCHASE ORDER WILL BE REJECTED, FAILURE TO FOLLOW THESE INSTRUCTIONS MAY RESULT IN DELAYS IN PAYMENT. (anbasystem, Tho, 17 Ap, 2014)Order No : PO494200 -FY14-FA0-Maintenance for Issued on Wed, 02 Ap, 2014 Suppiier. FARRIS CORPORATION $025 W NASA BLVD. MELBOURNE, FL3291@ Unites States Phone: 1321-727.5901 Fax 921.727 8677 a ship te ute iipstan Pose Deparment Malpowtan Poe Deparment Soot eM fed 50 ease Ae. 05 issn 86 eon, Se Sst Utes Sets Utes Bote one at) Tar-se8 atv to: LU Chstopher Kautnan Ton Onctnien PartWober Unk Gy Wowd By —UntPice Erne Anau a tom onerition Panumber Unk ly Newt By __UntPrice _Enended Amount a a eS om escon PanNmber Unk ly Newt By __UntPice_Enende Amount _ id Toa POETS CommentsCOMMENT by aribasystom on 0402/2014 ‘The Commodity Group Manager for this purchase NN (basystom, Wed, 02 Apr, 2014) COMMENT by arlbasystam on 0402/2014 FOB is Destination unless specie ctnrwise (aibasyster, Wed, 02 Ap, 2014) COMMENT by arbasystom on 0802/2014 “*"\GOVERNMENT OF THE DISTRICT OF COLUMBIA STANDARD CONTRACT PROVISIONS FOR USE WITH THE DISTRICT OF COLUMBIA GOVERNMENT SUPPLY AND SERVICES CONTRACTS (July 2010) ARE HEREBY INCORPORATED BY REFERENCE. WNWW.OP.DE.GOV™" (ar basystem, Wed, 02 Apr, 2014) COKIMENT by arbasystom on 040272014 ‘ALL INVOICES SHALL BE SUBMITTED TO THE BILL TO? ADORESS INDIGATED ON THiS PURCHASE ORDER. INVOICES SHALL INCLUDE THE PURCHASE ORDER NUMBER, CONTRACT NUMBER ([F APPLICABLE). CONTRACTOR'S NAME AND ADORESS, INVOICE DATE, QUANTITY AND DESCRIPTION OF GOOO(S) OR SERVICE(S) FOR WHICH PAYMENT IS BEING REQUESTED, REMITTANCE ADDRESS, AND CONTACT PERSON NAME AND PHONE NUMBER IF THERE IS A PROBLEM WITH THE INVOICE, INVOICES FOR QUANTITIES OR AMOUNTS GREATER THAN WHAT IS STATED ON THE PURCHASE OROER WILL BE REJECTED, FAILURE TO FOLLOW THESE INSTRUCTIONS MAY RESULT IN DELAYS IN PAYMENT. (aibasysion, Wed, 02 Ap, 2014)xs GOVERNMENT OF THE DISTRICT OF COLUMBIA —— METROPOLITAN POLICE DEPARTMENT Transmitted via electronic mail May 4, 2015 Sarah Foreman, Esq. Associate Director, Mayor's Office of Legal Counsel (MOLC) 1350 Pennsylvania Avenue, N.W. Suite 419 Washington, D.C. 20004 Re: FOIA Appeal (Light) Dear Ms. Foreman: This is in response to the Freedom of Information Act (FOIA) appeal that Jeffrey Light submitted on behalf of his client Jason Leopold, Mr. Light challenges the department's partial denial of his client’s request for “any and all records referring or relating to Stingray devices or equipment.” Mr, Leopold’s request encompassed all manuals, promotional materials, contracts, procurement documents, training documents, emails sent from any employee of Hartis Corporation to Cathy Lanier and Steven Sund relating to Stingray or cell site simulator and emails sent to or from Gwendolyn Crump or Cathy Lanier regarding a media request for an interview conceming the department's use of Stingray equipment. Mr. Leopold also requested a waiver of any fees relating to his request contending that responsive documents will be used to benefit the general public by informing citizens of the department's use of Stingray devices and equipment. The department responded to Mr. Light via email on September 5, 2014. The department advised that after a search, 121 pages of “procurement/purchasing” records had been identified and which were being released to him with redactions," The department also identified two operators manuals, a reference guide and training materials. Mr. Light was advised that the responsive documents were being withheld or redacted on the following grounds: (1) operators manuals and training materials were being withheld in their entirety pursuant to D.C. Official Code § 2-534 (a)(1) which exempts the disclosure of trade secrets and commercial or financial information obtained from outside the government to the extent that release would result in * The Investigative Services Bureau of the Criminal Investigation Division, Homeland Security Bureau and the Electronie Surveillance Unit are the only branches within the department that would have responsive documents. ‘A manual search of the paper files and a search of computer files were conducted by staff of those branches P.O. Box 1608, Washington, D.C. 20013-1606Sara Forman May 4, 2015 Page 2 substantial harm to the competitive position of the person from whom the information was: obtained; (2) pursuant to D.C. Official Code § (a)(3)(E) as release of the documents would disclose investigative techniques and procedures not generally known outside the government; and pursuant to D.C. Official Code § 2-534 (a)(2) as some documents contained redactions of persons’ names, personal identifiers, email addresses and social security numbers as disclosure ‘would constitute a clearly unwarranted invasion of personal privacy. _________The department supplemented its response via an email dated February 2,2015_Mr-Light was advised that the department had located an additional four (4) responsive dacuments which were, being released with some redactions. ‘The department indicated that the redactions were made pursuant to the same grounds relied upon in the initial response with the addition of D.C, Official Code § 2-534 (a)(5)(sic) which allows for the protection of information specifically exempted from disclosure by statute, ‘The statutes cited were the Homeland Security Act of 2002 and the Arms Export Control Act of 1976 ‘The department reaffirms its responses to Mr. Leopold’s request. The responsive documents are being withheld or redacted pursuant to D.C. Official Code §§ 2-534 (a)(2); (a)(3)(E);(a)(4); and (a)(6). Asa threshold matter, attached to the instant response to the appeal is a detailed letter from the Federal Bureau of Investigation (FBI) setting forth the basis for withholding or redacting information relating to law enforcement sensitive information about cell site simulator systems, including technical information, equipment purchases or the use by law enforcement agencies of such systems. ‘The letter references “NDA” which is an abbreviation for non- disclosure agreement. The department has signed a non-disclosure agreement with the FBL which prohibits the disclosure of documents concerning the capabilities of the cell site simulator systems manufactured by Harris Corporation. ‘The responsive documents and redacted information and the NDA itself are being withheld pursuant to the law enforcement privilege that is incorporated in (a)(4). Release of the information and the NDA, as explained in the letter, would provide information to persons intent on violating the law that could assist them in evading detection Mr. Light asserts on appeal that the department improperly withheld procurement and purchasing-related records, However, the information redacted from these documents consisted of accounting line and index numbers of cell site equipment or parts. ‘The FBI advises that this information could be used by an adversary in the public to perform a cross-index analysis within the released documents or with other publicly available data to ascertain sensitive information relating to the technical capabilities of cell site simulator systems, While cell site simulator systems are known to exist by persons outside the government, the technical capabilities of such systems are not generally known. The redacted information is properly withheld pursuant to (@)G)(CE). Mr. Light argues that similar information is available via the internet and thus confidential no suggestion that the information was disclosed by the Harris Corporation, the federalSara Forman May 4, 2015 Page 3 government or the department. Under these circumstances there is no waiver of the exemption from disclosure. Release of the withheld or redacted information may be in violation of the Arms Control Export ‘Act and International Traffic In Arms Regulation (ITAR). ITAR implements the Arms Export Control Act, 22 U.S.C. § 2778 and Executive Order 13,637, The FBI explains in its letter that cell site simulator manufacturers have classified their devices as regulated defense articles on the Unite States Munitions List. Accordingly, technical details related to the technology are subject to the non-disclosure provisions of the ITAR, 22 C.F.R,, Parts 120-130. As the Arms Export Act leaves no discretion in the requirement to withhold information from the public, the department's withholding and redaction of information is appropriate pursuant to (a)(6). ‘The department withheld the training materials and manuals in their entirety. These documents are such that the non-exempt information is inextricably intertwined with the exempt information. These materials consist of diagrams, flow charts and other technical information that after redactions are applied would leave no useful information, Finally, the department has obtained emails that are responsive to Mr. Leopold's request items no. 5 and 6. These emails are presently being reviewed and will be released subject to appropriate redactions. The emails total over 900 pages and the review will take at least two weeks. Mr. Light will be notified when the review has been completed. Sincerely, ‘uel 18 Moines [eames farris Deputy General Counsel Attachment; FBI Letter Non-Disclosure Agreement Vaughn IndexGOVERNMENT OF THE DISTRICT OF COLUMBIA EXECUTIVE OFFICE OF THE MAYOR wk Ee Mayor's Office of Legal Counsel — May 29, 2015 VIA ‘TRONIC MAIL, Mr. Jeffrey L. Light 1712 Eye St., NW Suite 915 Washington, DC 20006 Jeffrey@LawOfficeOflefireyLight.com RE: FOIA Appeal 2015-37 Dear Mr. Light: ‘This letter responds to your administrative appeal to the Mayor under the District of Columbia Freedom of Information Act, D.C. Official Code § 2-537 (“DC FOIA”). In your appeal, you (“Appellant”) assert that the Metropolitan Police Department (“MPD”) improperly withheld records you requested under the DC FOIA. Background On December 16, 2013, Appellant submitted a request under the DC FOIA to the MPD seeking records referring or relating to Stingray devices or equipment. The request describes Stingray as cell site simulator manufactured by the Harris Corporation that mimies a wireless carrier cell tower to receive location data and other information from all nearby mobile phones and cellular data devices. The request contained 9 parts as follows: 1. Please provide all manuals, guides, videos, brochures, pamphlets, and other records, whether in print or electronic format, which refer or relate to the installation, training, deployment, or use of any Stingray devices or equipment. 2. Please provide all promotional materials, including letters, emails, brochures, pamphlets, videos, and other records, whether in print of electronic format, which mention or describe Stingray devices or equipment. Please include in this search records produced by, originating from, or sent by third parties which mention or describe Stingray devices or equipment. The John A. Wikia Building + 1350 Peonapivaia Avenue, NW,» Suite 409” > Washing, DC. 20004Mr. Jeffrey Freedom of Information Act Appeal 20 May 29,2015 Page 2 3. Please provide all contracts, procurement documents, and other records which reflect the existence of any formal or informal agreement between the District of Columbia and Harris Corporation or its affiliates, representatives, or employees. 4, Please provide all invoices, budgets, and other records which reflect the current, future, or previous expenditure of District of Columbia funds to Harris Corporation or its, affiliates, representatives or employees. 5. Please provide all e-mails sent to Cathy Lanier or Steven Sund between January 1,2009 and the date of your search which are: 1) from any employee of Hartis Corporation (i.e. an e-mail address ending in "@harris.com"); OR 2) from anyone, but which contains the terms "Stingray" or "cell site simulator". Excluded from this request are emails from news aggregation services, 6. Please provide all training materials, general or special orders, internal operating procedures, circulars, $iTel modules, or other documents that constitute, refer, or relate to MPD policy on the use of Stingray or other cell site simulators. 7. Please provide any talking points or other documents which constitute, refer, or relate to communications with the media about Stingray or other cell site simulators. Your search should include, but not be limited to, emails to or from Gwendolyn Crump (Gwendolyn.Crump@de.gov) containing the term "Stingray"; emails to or from Gwendolyn Crump or Cathy Lanier referring or relating to the story by WUSA9 on MPD's use of Stingray (available online at = hitp:/Avww.wusa9.com/news/article/285084/1.58/DC-area-police-spying-on- cell-phonedata); and documents referring or relating to WUSAQ's 2013 request for an interview with MPD regarding Stingray (request by Nadia Pflaum, npflaum@wusa9.com or Russ Ptacek, rptacek(@wusa9.com). 8. Any documents constituting, referring, or relating to training on tracking civilian cell phones. 9. Please provide all other records that refer or relate to Stingray equipment or devices or any other cell site simulator equipment or devices. ‘The MPD submitted three responses to Appellant’s request: 1) on June 25, 2014, the MPD produced 15 pages of records; 2) on September 5, 2014, the MPD produced 121 pages of records; and 3) on February 2, 2015, the MPD produced 4 pages of records. The MPD disclosed redacted portions of these records claiming exemptions under D.C. Official Code §§ 2-534(a)(1), (@)2), @G)E), and (6). (“Exemption 1,"" “Exemption 2,”? “Exemption 3(F),”? and “Exemption cemption 1 protects records containing “{t]rade secrets and commercial or financial information obtained from outside the government, to the extent that disclosure would result in ‘Substantial ham To the competitive position of the person from Whom the information was obtained.”Mr. Jeffrey Light Freedom of Information Act Appeal 2015-37 May 29, 2015 Page 3 6” respectively). The MPD located other responsive records, an operator manual, reference guide, and training material. Those records were withheld in their entirety under the same exemptions. Appellant submitted an appeal to the Mayor on February 21, 2015, challenging the MPD’s second and third responses to the FOIA request. Appellant accepts redactions under Exemption 2 but contends all other redactions pursuant to Exemptions 1, 3(E), and 6 were improper. Appellant asserts that the use Exemption 1 is improper because the MPD did not show that the Stingray manufacturer faces actual competition and failed to indicate how disclosure would cause substantial competitive injury citing Wash. Post Co. v. Minority Bus. Opportunity Com., 560 A.2d 517, 522 (D.C. 1989). Appellant asserts that the use of Exemption 3(E) is improper because the public is aware of the use of Stingray devices; therefore, disclosure would not reveal investigative techniques or procedures that are not generally known outside the government. Appellant asserts that the MPD did not sufficiently explain the statutes it claimed as a basis for Exemption 6. Based on the MPD’s limited assertion, Appellant could not determine how the Homeland Security Act of 2002 and the Arms Export Control Act of 1976 could prevent disclosure of the records, In addition to contesting the MPD’s use of exemptions, Appellant asserts that it was improper to withhold training material and manuals in their entirely. Appellant contends that the MPD must redact the relevant records and disclose segregable portions, Appellant asserts that the MPD's redactions of the training material and manuals may also be challenged, but without a portion of the records those challenges cannot be made, Appellant asserts that the MPD disclosed a redacted brochure that cannot be redacted because it is in public domain having been released by the police department of Miami, Florida.’ Finally, Appellant asserts that the MPD did not adequately search for responsive records. Specifically. the MPD did not appear to search for parts numbered 5 and 6 of the request. Inaletter dated May 4, 2015, the MPD responded to the appeal reaffirming its redactions and withholdings. In its response, the MPD does not assert Exemption | but affirms and clarifies its use of Exemptions 2, 3(E), and 6, The MPD also raises the exemption under D.C. Official Code § 2-534(a)(4) (“Exemption 4”).° ‘The MPD states that it consulted with the Federal Bureau of ? Exemption 2 protects records containing “[iJnformation of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” * Exemption 3(E) protects records that would “[d]isclose investigative techniques and procedures not generally known outside the government.” “Exemption 6, which allows for protection of information specifically exempted from disclosure by statute outside of DC FOIA, was asserted in conjunction with the Homeland Security Act of 2002 and the Arms Export Control Act of 1976. = Appellant cites http://egov.ci.miami.f1.us/Legistarweb/A tachments/48003.paf page 5 ofa PDF * Exemption 4, often known as the “deliberative process privilege” or “litigation privilege,” protects “[i}nter-agency or intra-agency memorandums or letters ... which would not be available by law to a party other than a public body in litigation with the public body.”Mr. Jeffrey Light Freedom of Information Act Appeal 2015-37 May 29, 2015 Page 4 Investigation (“FII”) regarding this request to determine the law enforcement sensitive information related to its records of Stingray devices. The MPD describes its nondisclosure agreement (“NDA”) with the FBI, which prohibits the disclosure of documents concerning the capabilities of Stingray devices. The MPD asserts that the NDA itself is withheld pursuant to xemption 4. The MPD explains that the purpose of the NDA is to prevent disclosure of information that could assist people intent on violating the aw to evade detection. The MPD claims that Exemption 3(E) was properly asserted to redact accounting and index numbers of Stingray parts and equipment because the information could be used to perform a cross-index analysis with other publicly available data to ascertain sensitive information relating to the technical capabilities of Stingray systems. The MPD argues that while the use of Stingray devices is known outside the government, the technical capabilities of such systemsarenot SSS generally known and disclosure of technical capability could allow circumventing of law: enforcement. ‘The MPD clarifies that its use of Exemption 6 to withhold and redact information is used in conjunetion with the Arms Control Export Act and Intemational Traffic In Arms Regulation (ITAR), which implements the Arms Export Control Act, 22 U:S.C; §-2778 and Executive Order 13637. The MPD states that Stingray devices are classified as regulated defense articles on the United States Munitions List (USML), and technical details related to USML technology are subject to the non-disclosure provisions of the ITAR, 22 C-F.R., Parts 120-130. The MPD asserts that the Arms Control Export Act and ITAR leave no discretion in the requirement to withhold information from the public. Addressing Appellant's public domain argument, the MPD asserts that the information cited by Appellant was not disclosed by the Harris Corporation, the federal government, or the MPD; therefore, there is no waiver of the exemption from disclosure. Regarding the materials withheld entirely, the MPD claims that it withheld the training materials and manuals in their entirety, because the non-exempt information is inextricably intertwined with the exempt information. ‘These materials consist of diagrams, flow charts, and other technical information that after redactions are applied would leave no useful information. On May 5, 2015, the MPD submitted training materials and manuals for in camera review. In response to Appellant's assertion that the MPD did not adequately search for records sought in parts 5 and 6 of the request, the MPD conducted another search and discovered responsive emails. The MPD states that the emails are presently being reviewed and will be released subject to appropriate redactions. The MPD states that there are over 900 pages of emails. At the time of the response, the MPD estimates that the review will take at least two weeks, and Appellant will be notified when the review has been completed. Discussion Itis the public policy of the District of Columbia that “all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who policy, DC FOIA creates the right “to and ... copy any publie record of a public bodyMr. Jeffrey Light Freedom of Information Aet Appeal 2015-37 May 29,2015 rage 5 2-532(a). The right created under DC FOIA to inspect public records is subject to various exemptions that may form the basis for denial ofa request. DC FOIA was modeled on the corresponding federal Freedom of Information Act, Barry v. Washington Post Co., 529 A.2d 319, 312 (D.C. 1987), and decisions construing the federal stature are instructive and may be examined to construe local law. Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 521, n.5 (D.C. 1989). cemptions Appellant raises a valid argument that the MPD did not adequately assert the necessary elements to make redactions or withhold disclosure under Exemption 1, The MPD does not reassert or defend the use of Exemption 1 in its response to this appeal. Therefore, Exemption 1 is not considered in this Appeal. Exemption 2 is not at issue at issue either, because it is not contested by Appellant. Exemption 3(E) is at issue; Appellant argues that the MPD cannot redact or withhold the records under this exemption because the use of the devices is known to the general public. Further, Appellant asserts the use of Exemption 3(E) is improper because the redacted information, prices and model identifications, does not reveal investigative techniques or procedures of law enforcement. For Exemption 3(F) to apply, the information at issue must not be well known to the public. See Rugiero v. DOJ, 257 F.3d 534, 551 (6th Cir. 2001). Even when a surveillance technique is commonly known, courts have endorsed the withholding of details that could allow criminals to circumvent the surveillance.’ The MPD asserts that while the existence and use of Stingray devices is generally known, the technical capabilities of such devices are not generally known. There are technological countermeasures and efforts to circumvent surveillance by Stingray-like devices.* Due to the technical nature of Stingray surveillance, we defer to the MPD"s assertion that knowing technological capabilities of the devices could result in increased cireumvention. Here, disclosure of product names, costs, and serial numbers could be cross referenced with other available information, to reveal the technological capabilites of the MPD's Stingray equipment because product names, costs, and serial numbers are linked to the technological ‘capabilities of these devices. Due to the MPD’s assertion that knowledge of the Specific, technical 7 See, e,g., Soghoian v. DOJ, 885 F. Supp. 2d 62, 75 (D.D.C. 2012) (protecting electronic surveillance techniques because release of information showing what information is collected during surveillance, how it is collected, and when it is not collected could allow criminals to evade detection); Lewis-Bey v. DOJ, 595 F. Supp. 2d 120, 138 (D.D.C. 2009) (protecting details of electronic surveillance techniques, including "circumstances . .. timing of their use, and the specific location where they were employed"); Boyd v, ATF, 570 F. Supp. 2d 156, 158-59 (D.D.C. 2008) (concluding ATF properly withheld detailed information regarding use of surveillance equipment), A basic internet search revealed applications (SnoopSnitch and Android ISMI-Catcher Detector) and articles (see, e.g. Adrian Dabrowski, et al. IMS/-Catch Me If You Can: IMSI- Catcher-Catchers available at https://www.sba-research.org/wp- content/uploads/publications/DabrowskiEtAl-IMSI-Catcher-Catcher-ACSAC2014.pdf) that focus on circumventing the detection capabilities of Stingray-like devices.Mr. Jeffrey Light Freedom of Information Act Appeal 2015-37 May 29, 2015 Page 6 capabilities of the MPD’s Stingray equipment could allow criminals to evade detection, the redactions and withholdings by the MPD under Exception 3(E) are proper. Regarding Exemption 6, the MPD clarified the statutes outside of DC FOIA, the ITAR and the ‘Aus Control Export Act, thal il relied upon to prevent the releuse of technical information concerning the capability of its Stingray devices. ‘The MPD states that Stingray devices have been classified as regulated defense articles on the USML.. See 22.C.F.R. § 121.1(b), As such, technical details conceming this technology are subject to the non-disclosure provisions of the ITAR. See 22 C.F.R. §§ 120-130. ‘The FAR implements the Arms Export Control Act, 22 US.C. § 2778, and Executive Order 13,637, which control the export and import of defense- related articles and services listed on the USML. Because this equipment is governed by the AFAR, anyone exporting the information is required-to-oblain @-license-from the Department of State, See 22 C.F R. § 123.1. An unauthorized export of ITAR-controlled information is a felony. See 22 C.F.R., § 127. The technical information does not have to leave the borders of the United States to be deemed an export subject to the regulation, See 22 C.P.R. § 120.17 (defining an export as the disclosure of technical data about a cefense article to a foreign national, even while located in the United States), Here, Appellant's elient is a reporter who has already published the MPD’s initial disclosures from this FOIA request. Publication makes the information accessible ta foreign nationals. ‘Thus, if'the MPD did not withhold and redact technical information of the Stingray devices the disclosure would constitute an unlawful export under the ITAR and the Arms Control Export Act. Therefore, Exemption 6 is properly asserted because disclosure by the MPD to Appellant ‘would constitute an unlawful export under federal law. Exemption 4 was raised by the MPD in its response to this appeal. As a result, Appellant has not had the opportunity to respond to its invocation. Exemption 4 has been interpreted to incorporate the protections available in civil discovery. See United States v. Weber Aircraft Corp., 465 US. 792, 799-800 (1984); FIC v. Grolier Inc., 462. U.S. 19, 26-27 (1983). The MPD asserts that certain information was withheld and redacted under the law enforcement privilege encompassed in Exemption 4. Exemption 4 is most commonly asserted for the deliberative process privilege. See, e.g, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). The law enforcement privilege is a qualified privilege recognized at common law that is designed to protect ongoing investigations from premature disclosure, disruption, and compromise, See Black v. Sheraton Corp. of America, 564 F.2d 531, 546-47 (D.C. 1977). The purpose of the privilege is to protect the confidentiality of sources as well as law enforcement strategies and accumulated evidence. Kay v. Pick, 711 A.2d 1251, 1256 (D.C. 1998) (“The privilege is a conditional one that must be asserted with particularity by a high official of the law enforcement agency who is both authorized to assert the privilege on behalf of the ageney and who is in a position to know that the privilege is necessary. The assertion of the privilege must be formal and delineated. The party claiming the privilege must have (1) seen and considered the contents of the documents and (2) himself formed the view that on grounds of public interest, they ought not be produced, (3) state with specificity the rationale of the claimed privilege, namely (a) specifying whieh documentror elaw-of dacuments-are-privieged-and 3th} for sehiatMr. Jeffrey Light Freedom of Information Act Appeal 2015-37 May 29, 2015 Page 7 The deliberative process privilege of Exemption 4 is intended to protect the process and promote the quality of agency decisions. See Sears, 421 U.S. at 150-51. There are two requirem¢ invoke the deliberative process privilege. See Mapother v. DOJ, 3 F.3d 1533, 1537 (D. 1993). First, the communication must be predecisional. Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 513 (D.C. Cir. 2011) (stating that predecisional communications are "{ajntecedent to the adoption of an agency policy"). Second, the communication must be deliberative. See Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975) (stating that a deliberative communication “makes recommendations or expresses opinions on legal or policy matters"). In this appeal, it is not clear that the law enforcement privilege of Exemption 4 offers protection from disclosure beyond what is provided by Exemption 3(E). Further, the MPD did not state sufficient specificity to prevent disclosure under the law enforcement privilege beyond the protection provided by Exemption 3(E). After examining the NDA that the MPD entered into with the FBI, we conclude the document cannot be withheld in its entirety under law enforcement privilege of Exemption 4. The NDA is responsive to Appellant’s FOIA request and shall be produced subject to redactions under DC FOIA. However, the guidanee that the FBI ‘communicated to the MPD regarding this appeal is protected from disclosure under the deliberative process privilege of Exemption 4 because it is both predecisional for the MPD and deliberative. Public Domain Appellant argues that a portion of the record disclosed by the MPD, a redacted brochure, must be fully disclosed without redaction because itis in the public domain having been published by the Police department of Miami, The Court of Appeals forthe District of Columbia Circuit has held that under the public domain doctrine, information that would otherwise be subject to a vs FOIA exemption must be disclosed if that information is preserved in a permanent public record or is otherwise easily accessible by the public. (D.C. Cir, 2001), Niagara Mohawk Power Corp. v. DOJ, 169 F.3d 16, 19 (D.C. Cir.1999); see also The Judicial Watch, Inc. v. United States DOD, 963 F. Supp. 24 6, 12 (D.D.C. 2013). In order for the public domain doctrine to apply, a requester must be able to point “to specific information in the public domain that appears to duplicate that being withheld.” Afshar v. U.S. Dep't of State, 702 F.2d 1125, 1130 (D.C. Cit. 1983); see, e.g., Edwards v. DOJ, No. 04-5044, 2004 WL 2905342, at *1 (D.C. Cir. Dec. 15, 2004), ‘The MPD's assertion that the brochure was not disclosed by the Harris Corporation, the federal goverment, or the MPD does not appear to be relevant for the purposes of redaction, based on the public domain doctrine, as described by the courts, See Students Against Genocide 257 F.3d at 836 (finding that the public domain doctrine applies if a document is available as a permanent public record regardless of the entity that publishes the record); see also, Niagara 169 F.3d at 19. However, the brochure in the public domain does not match the records disclosed to AppellantMr. Jeffrey Light Freedom of Information Act Appeal 2015-37 May 29,2015 Page 8 by MPD.’ Appellant has not provided sufficient support to apply the public domain doctrine because the records do not match. Therefore, we affirm the MPD’s decision to redact the brochure. Sei Appellant argues that the MPD improperly withheld training material and manuals in their entirely. The basis for this claim is D.C. Official Code § 2-534(b), which requires that an agency produce “[ajny reasonably segregable portion of a public record . .. after deletion of those portions” that are exempt from disclosure, The phrase “reasonably segregable” is not defined under DC FOIA and the precise meaning of the phrase as it relates to redaction and production has not- been settled. See Veager-v-Drug Enforcement Admins, 678 F.24-315, 322-16 (D.C. Cit 1982), ‘To withhold a record in its entirety, one interpretation is that an agency must demonstrate that exempt and nonexempt information are so inextricably intertwined that the excision of exempt information would produce an edited document with little to no informational value. See Antonelli v. BOP, 623 F. Supp. 2d 55, 60 (D.D.C. 2009). Here, the MPD claims that redaction of the records would produce documents with no useful information. After reviewing the training material and manuals provided by the MPD, itis apparent that the records consist almost entirely of equipment descriptions, technical specifications, and surveillance techniques that would be withheld under Exemptions 3(E) and 6, ‘After redactions for exemptions were applied little to no information value would remain. Therefore, the training material and manuals were properly withheld. = Adequacy earch In reviewing Appellant's claim that parts 5 and 6 of the request lacked a sufficient response, the MPD located over 900 pages of responsive emails. In its response the MPD stated that it will disclose the emails subject to applicable redactions. Therefore, this element of the appeal is moot due to the MPD’s revised position, The MPD is instructed to review, redact, and disclose the records following the guidance in this determination. ° Comparing http://egov.ci.miami.fl.us/Legistarweb/A ttachments/48003.pdf with _ :// www.scribd.com/ fullscreen /243265839?access_key=key- Ye }oCz7dOvLFy Ww &eallow_share=trued&escape=falsedcview_mode=scrollMr. Jeffrey Light Freedom of Information Act Appeal 2015-37 May 29, 2015 Page 9 Conclusion Based on the foregoing, we affirm the MPD’s revised decision in part, and remand it in part. The MPD shall provide Appellant a copy of its NDA with the FBI subject to redaction and shall state its legal grounds for the redactions under DC FOIA. As the MPD stated in its response to this appeal, the MPD shall produce the records it identified responsive to parts 5 and 6 of the request subject to redaction and shall state its legal grounds for the redactions under DC FOIA. This constitutes the final decision of this office. If you are dissatisfied with this decision, you may commence a civil action against the District of Columbia government in the Superior Court of the District of Columbia in accordance with the DC FOIA. Sincerely, Js Sarah Jane Foreman Sarah Jane Foreman Associate Director Mayor's Office of Legal Counsel s John A, Marsh* John A. Marsh Legal Fellow Mayor's Office of Legal Counsel ce: Ronald B, Harris, Deputy General Counsel, MPD (via email) * Admitted in Maryland; license pending in the Distinet of Columbia; practicing under the supervision of members of the D.C. Bar