COMPLAINT. NOW COMES Plaintiff, FREDDY MARTINEZ, by his undersigned attorneys, LOEVY

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1 CALENDAR: 14 PAGE 1 of 15 CIRCUIT COURT OF IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COOK COUNTY, ILLINOIS CHANCERY DIVISION COUNTY DEPARTMENT, CHANCERY DIVISION CLERK DOROTHY BROWN FREDDY MARTINEZ, ) ) Plaintiff, ) ) v. ) ) COOK COUNTY STATE S ) ATTORNEY S OFFICE ) ) Defendant. ) COMPLAINT NOW COMES Plaintiff, FREDDY MARTINEZ, by his undersigned attorneys, LOEVY & LOEVY, and brings this Freedom of Information Act suit to overturn Defendant COOK COUNTY STATE S ATTORNEY S OFFICE s refusal to disclose information about controversial and Constitutionally suspect use of cell site simulator surveillance equipment and evidence collected using this equipment on the basis that it would be too burdensome. In support of his Complaint, MARTINEZ alleges: INTRODUCTION 1. Pursuant to the fundamental philosophy of the American constitutional form of government, it is the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of the Illinois Freedom of Information Act ( FOIA ). 5 ILCS 140/1. 2. Restraints on access to information, to the extent permitted by FOIA, are limited exceptions to the principle that the people of this state have a right to full disclosure of

2 information relating to the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of the people. Id. 3. All public records of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt. 5 ILCS 140/3. 4. A request is only unduly burdensome under the law if the burden of compliance outweighs the public interest in disclosure. 5 ILCS 140/3. 5. Under FOIA Section 11(h), except as to causes the court considers to be of greater importance, proceedings arising under [FOIA] shall take precedence on the docket over all other causes and be assigned for hearing and trial at the earliest practicable date and expedited PAGE 2 of 15 in every way. 6. Defendant COOK COUNTY STATE S ATTORNEY S OFFICE has willfully and intentionally violated FOIA by refusing to produce records related to the presentation of evidence obtained through use of cell site simulators on the basis that it would be too burdensome and is insufficiently important to the public to justify the work involved to produce the records. PARTIES 7. Plaintiff FREDDY MARTINEZ is the FOIA requester in this case. 8. Defendant COOK COUNTY STATE S ATTORNEY S OFFICE ( CCSAO ) is a public body located in Cook County, Illinois. 9. In Nelson v. County of Kendall, 2014 IL , the Illinois Supreme Court confirmed that state s attorneys are subject to FOIA, holding that the contrary position of the Kendall County state s attorney, supported by CCSAO and other state s attorneys, has no - 2 -

3 support in established principles of statutory construction and is incompatible with the FOIA s presumption in favor of disclosure. BACKGROUND ON CELL SITE SIMULATORS 10. There currently exists a variety of equipment commonly known as IMSI catchers, cell site simulators, or stingrays, which masquerade as cellphone towers to obtain data secretly from all nearby cellular user devices, including obtaining data from those who are not the target of a legitimate investigation. 11. Chicago Police Department owns and uses cell site simulators in a manner that it has not fully revealed to the public. 12. It has been reported in the press that police departments in other states have PAGE 3 of 15 obtained orders to use this equipment through inappropriate means and have entered plea agreements with criminal defendants rather than reveal information about the use of the equipment or its capabilities. 13. Former federal Magistrate Judge Brian Owley has expressed concern that the federal government is presenting applications for stingrays that may be misleading or not adequately notify the magistrate judge what the application is actually seeking in terms of electronic surveillance. 14. Records obtained in other states indicate that the federal government has actively attempted to force local law enforcement to keep details regarding cell site simulators secret, even from the courts. 15. The Judiciary Committee of the United States Senate has questioned the use of cell site simulator equipment at the federal level and is currently seeking to determine whether its use has been constitutional

4 16. The ACLU, Electronic Privacy Information Center, Electronic Frontier Foundation, and others have questioned whether local law enforcement are using cell site simulators in a constitutionally permissible way. 17. The Chicago Sun-Times, The Chicago Tribune, WBBM, WGN, WBEZ, Bloomberg, Christian Science Monitor, The Chicago Reader, Ars Technica, In These Times, RT, Vice, Chicagoist, and other media have covered various aspects of Chicago Police Department s use or suspected use of cell site simulator equipment. 18. Chicago Police Department has obtained court orders, not based on a showing of probable cause, purporting to allow to use cell site simulators. 19. Upon information and belief, Chicago Police Department has obtained evidence PAGE 4 of 15 using cell site simulators without obtaining a warrant to obtain the evidence based on a showing of probable cause. 20. Upon information and belief, CCSAO has presented evidence against criminal defendants that was obtained using cell site simulators without obtaining a warrant to obtain the evidence based on a showing of probable cause. 21. Upon information and belief, Chicago Police Department has obtained evidence, and CCSAO has presented evidence, that was obtained from use of cell site simulators in reliance on court orders in which Chicago Police Department did not specifically identify in its application that it was seeking to use a cell site simulator. 22. There is a strong public interest in information about how local law enforcement is using cell site simulators and the evidence obtained through simulators and with what constitutional protections, if any

5 MARTINEZ S FOIA REQUEST AND COOK COUNTY STATE S ATTORNEY S OFFICE S REFUSAL TO COMPLY 23. On December 31, 2014, MARTINEZ made the following FOIA request ( Request ) to COOK COUNTY STATE S ATTORNEY S OFFICE: For each instance in which information obtained using a cell site simulator (also known as IMSI catcher or commonly known as stingray equipment) was used in a criminal prosecution, all records showing the case, the information that was used, the charges, the outcome of the case, how the information was obtained and by whom, and any court orders authorizing the use of the equipment. 24. On January 5, 2015, COOK COUNTY STATE S ATTORNEY S OFFICE responded to the Request, claiming that the public interest in disclosure of the information was PAGE 5 of 15 not sufficient to require CCSAO even to search for records. A true and correct copy of the response is attached as Exhibit A. 25. In response, MARTINEZ proposed a process to search for records that would only have required CCSAO to its attorneys and report, based solely on their recollections, if they had any such cases. MARTINEZ offered to then confer with CCSAO about further narrowing. MARTINEZ also proposed an electronic search of CCSAO s server for s using specific search terms. 26. CCSAO agreed to discuss the proposed process with relevant staff and denied the Request as drafted. A true and correct copy of CCSAO s response is attached as Exhibit B. 27. After further discussions in which MARTINEZ further offered to limit the inquiry to terrorism and narcotics cases, CCSAO refused to undertake the process proposed by MARTINEZ to alleviate CCSAO s claimed burden concerns and failed to provide any counterproposal. A true and correct copy of CCSAO s response is attached as Exhibit C

6 28. In its responses to the request, CCSAO failed to address controlling caselaw on this issue, National Association of Criminal Defense Lawyers v. Chicago Police Department, which held that even several weeks of full time work by police personnel who need to possess a high level of knowledge and sophistication did not outweigh the public interest in disclosure of information regarding controversial policing techniques with constitutional implications. 29. To date, COOK COUNTY STATE S ATTORNEY S OFFICE has refused to produce a single record in response to MARTINEZ S FOIA request. 30. The Illinois Attorney General has found on multiple occasions that the CCSAO has violated FOIA in other matters. PAGE 6 of 15 FOIA. COUNT I WILLFUL VIOLATION OF FOIA 31. The above paragraphs are incorporated by reference. 32. COOK COUNTY STATE S ATTORNEY S OFFICE is a public body under 33. The records sought in MARTINEZ s original and modified FOIA requests are non-exempt public records of COOK COUNTY STATE S ATTORNEY S OFFICE and would not be unduly burdensome to produce. 34. COOK COUNTY STATE S ATTORNEY S OFFICE has violated FOIA by refusing to produce the requested records. 35. COOK COUNTY STATE S ATTORNEY S OFFICE S violation was willful and intentional and in bad faith. WHEREFORE, MARTINEZ asks that the Court: i. in accordance with FOIA Section 11(f), afford this case precedence on the Court s docket except as to causes the Court considers to be of greater importance, assign - 6 -

7 this case for hearing and trial at the earliest practicable date, and expedite this case in every way; ii. declare that COOK COUNTY STATE S ATTORNEY S OFFICE has violated FOIA; iii. order COOK COUNTY STATE S ATTORNEY S OFFICE to produce the requested records under FOIA; iv. enjoin COOK COUNTY STATE S ATTORNEY S OFFICE from withholding non-exempt public records under FOIA; v. award MARTINEZ reasonable attorneys fees and costs; and vi. award such other relief the Court considers appropriate. PAGE 7 of 15 RESPECTFULLY SUBMITTED, Attorneys for Plaintiff FREDDY MARTINEZ Matthew Topic Joel Feldman LOEVY & LOEVY 312 North May St., Suite 100 Chicago, IL (312) matt@loevy.com joel@loevy.com Atty. No

8 ANITA ALVAREZ STATE'S ATTORNEY PAULA. CASTIGLIONE EXECUTIVE ASSISTANT STATE'S ATTORNEY FOR POLICY WRITER'S ADDRESS: OFFICE OF THE STATE'S ATTORNEY COOK COUNTY, ILLINOIS 69 West Washington St. Suite 3200 CHICAGO, ILLINOIS WRITER'S DIRECT LINE: (312) WRITER'S DIRECT FAX: (312) January 5, 2015 VIA ELECTRONIC MAIL AND U.S. MAIL PAGE 8 of 15 Mr. Matthew V. Topic Loevy & Loevy 312 North May Street Suite 100 Chicago, Illinois Re: FOIA request dated 12/31/14 Dear Mr. Topic: I have received the FOIA request that you sent to the Cook County State's Attorney's Office (the "SAO") by on December 31, You asked for the following documents: For each instance in which information obtained using a cell site simulator (also known as IMSI catcher or commonly known as "stingray" equipment) was used in a criminal prosecution, all records showing the case, the information that was used, the charges, the outcome of the case, how the information was obtained and by whom, and any court orders authorizing the use of the equipment. I have made inquiries senior attorneys from our Criminal Prosecutions and Narcotics Bureaus and have determined that the SAO has no way of knowing the identity of criminal cases where a cell site simulator was used to obtain evidence in those cases, if any such cases exist. In other words, the SAO has no list of cases where "stingray" equipment, an IMSI catcher or any other cell site simulator was used to obtain information and/or evidence. As I am sure you know, the FOIA statute does not impose a duty to create lists or other public records for purposes of the statute and the failure to furnish a non-existent Exhibit A

9 Mr. Matthew V. Topic January 5, 2015 Page 2 record does not violate FOIA. Workman v. Illinois State Board of Education, 229 Ill. App. 3d 459, 463 (2nd Dist. 1992); 2011 PAC (April27, 2012) (same). See also Heinrich v. White, 2012 IL App (2d) , ~r1o, 975 N.E.2d 726 (2nd Dist. 2012) (holding that "a request for records not yet created is invalid"). On this basis, I deny your FOIA request. In addition, doing a hand count over the hundreds of thousands of pending criminal cases to determine whether "stingray" equipment, an IMSI catcher or any other cell site simulator was used to obtain information and/or evidence would be unduly burdensome under Section 3(g) of FOIA. See, e.g., Shehadeh v. Madigan, 2013 IL App (4th) , 996 N.E.2d 1243 (4th Dist. 2013) (holding that a FOIA request to the Attorney General's office was unduly burdensome under Section 3(g) of FOIA). In Shehadeh, the court held that the FOIA request was unduly burdensome because: PAGE 9 of 15 a search of the Attorney General's records retrieved over 9,200 potentially responsive files and complying with plaintiff's request would be unduly burdensome because staff would have to go through each file by hand to determine which records were responsive and then review and redact information from those responsive records to protect against the release of exempt information. See Shehadeh, 2013 ILApp (4th) at 'n5 and 34,996 N.E.2d at 1245 and Under Shehadeh, a hand count of the hundreds of thousands of criminal cases that the SAO currently has is unduly burdensome under Section 3(g) of FOIA and I deny the request on that alternative basis. If you wish to narrow your FOIA request to a request for documents about a particular case, the SAO will consider that request at that time. Accordingly, and for the foregoing legal reasons, I respectfully deny your FOIA request. You have a right to appeal this decision to Sarah Pratt, Public Access Counselor, Office of the Illinois Attorney General, 500 S. 2nd Street, Springfield, Illinois 62706, (phone number FOIA) or to seek judicial review under Section 11 of FOIA, 5 ILCS 140/11 (2014). Sincerely, c... ~... c.. Paul A. Castiglione Executive Assistant State's Attorney for Policy 69 West Washington St. Suite 3200 Chicago, Illinois (312)

10 ANITA ALVAREZ STATE'S ATTORNEY PAULA. CASTIGLIONE EXECUTIVE ASSISTANT STATE'S ATTORNEY FOR POLICY WRITER'S ADDRESS: PAUL.CASTIGLIONE COOKCOUNTYIL.GOV OFFICE OF THE STATE'S ATTORNEY COOK COUNTY, ILLINOIS 69 West Washington St. Suite 3200 CHICAGO, ILLINOIS WRITER'S DIRECT LINE: (312) WRITER'S DIRECT FAX: (312) January 6, 2015 VIA ELECTRONIC MAIL AND U.S. MAIL PAGE 10 of 15 Mr. Matthew V. Topic Loevy & Loevy 312 North May Street Suite 100 Chicago, Illinois Re: FOIA request dated 115/15 Dear Mr. Topic: I received the FOIA request that you sent to the Cook County State's Attorney's Office (the "SAO") by on December 31, 2014 in which you asked for the following documents pursuant to the Illinois Freedom of Information Act ("FOIA"): For each instance in which information obtained using a cell site simulator (also known as IMSI catcher or commonly known as "stingray" equipment) was used in a criminal prosecution, all records showing the case, the information that was used, the charges, the outcome of the case, how the information was obtained and by whom, and any court orders authorizing the use of the equipment. On January 5, 2014, I sent you a response denying this request on the grounds that it was unduly burdensome under Section 3(g) of FOIA ("Section 3(g)")- A copy of my January 5, 2014letter to you is attached. On January 5, 2014, you sent me an proposing that the SAO take the following steps: Exhibit B

11 Mr. Matthew V. Topic January 6, 2015 Page 2 send an to every attorney in the SAO and ask each to identify, based on memory, any cases in which evidence was obtained using a stingray. conduct a server-side centralized search of s (both within CCSAO and the s stored by the County) for "stingray," "IMSI catcher," and "cell cite simulator" and produce any non-exempt records. I am going to treat your 115/14 to the SAO as an additional FOIA request and will respond to each portion of that request individually. PAGE 11 of 15 You request that the SAO send an to all Assistant State's Attorneys asking each to identify, based on memory, any cases in which evidence was obtained using a stingray. There are over 800 Assistant State's Attorneys in the SAO. And, unless an issue arose at trial in which proof needed to be adduced to show the source of some particular evidence, an ASA who tried a case in which some law enforcement officials obtained information from a cell site simulator would likely not know whether any evidence in that case was obtained through a stingray. And, in any event, your suggestion of mass s would require ASA's to make phone calls to law enforcement (which FOIA does not require) and to conduct the type of hand counts of cases that the appellate court has already held to be unduly burdensome under Section 3(g). See, e.g., Shehadeh v. Madigan, 2013 IL App (4th) , 996 N.E.2d 1243 (4th Dist. 2013) (holding that a FOIA requestto the Attorney General's ofll.ce was unduly burdensome under Section 3(g) because it required a hand count of9,200 documents). Your request would further burden the SAO by requiring personnel to follow up with any of the 800 plus Assistant State's Attorneys who do not respond in a timely manner, who respond with questions or whose response is potentially incomplete or vague. The response also arguably requires outreach. to former Assistants who no longer work in the office. FOIA does not place such an unreasonable burden on a public office. You also request that the SAO conduct a server-side centralized search of s (both within CCSAO and the s stored by the County) for "stingray," "IMSI catcher," and "cell cite simulator" and produce any non-exempt records. This request is also unduly burdensome under Section 3(g). In 2013, I has occasion to ask the County to conduct a search of s for around 20 SAO employees looking for s from a two year window and using about a half-dozen search terms. That search took several months. Here, you are asking the SAO and the County to search the s of the entire office over an unspecified time period using three search terms. This request would take at least a month or two, if not longer. Consequently, I deny this portion of your FOIA request on the grounds that it is unduly burdensome under Section 3(g).

12 Mr. Matthew V. Topic January 6, 2015 Page 3 Finally, I have spoken with Kent Ray and we would be able to speak with you about your two latest FOIA requests on Thursday, January 8, 2015 at 11:00 a.m. Please let me or Kent know if that time works for you. Thanks. Accordingly, and for the foregoing legal reasons, I respectfully deny your FOIA request. You have a right to appeal this decision to Sarah Pratt, Public Access Counselor, Office of the Illinois Attorney General, 500 S. 2nd Street, Springfield, Illinois 62706, (phone number FOIA) or to seek judicial review under Section 11 of FOIA, 5 ILCS 140/11 (2014). Sincerely, f,.,.,_j c... f yt.: ~ PAGE 12 of 15 Paul A. Castiglione Executive Assistant State's Attorney for Policy 69 West Washington St. Suite 3200 Chicago, Illinois (312) 603:1840

13 ANITA ALVAREZ STATE'S ATTORNEY PAULA. CASTIGLIONE EXECUTIVE ASSISTANT STATE'S ATTORNEY FOR POLICY WRITER'S E MAIL ADDRESS: PATJL.CASTIGLIONE@COOKCOUNTYIL.GOV OFFICE OF THE STATE'S ATTORNEY COOK COUNTY, ILLINOIS 69 West Washington St. Suite 3200 CHICAGO, ILLINOIS WRITER'S DIRECT LINE: (312) WRITER'S DIRECT FAX: (312) January 27, 2015 VIA ELECTRONIC MAIL AND U.S. MAIL PAGE 13 of 15 Mr. Matthew V. Topic Loevy & Loevy 312 North May Street Suite 100 Chicago, Illinois Re: FOIA request of Freddy Martinez dated 12/31/14 Dear Mr. Topic: I received the FOIA request of Freddy Martinez that you sent to the Cook County State's Attorney's Office (the "SAO") by on December 31, 2014 in which you asked for the following documents pursuant to the Illinois Freedom of Information Act ("FOIA"): For each instance in which information obtained using a cell site simulator (also known as IMSI catcher or commonly known as "stingray" equipment) was used in a criminal prosecution, all records showing the case, the information that was used, the charges, the outcome of the case, how the information was obtained and by whom, and any court orders authorizing the use of the equipment. On January 5, 2014, I sent you a response denying this request on the grounds that it was unduly burdensome under Section 3(g) of FOIA ("Section 3(g)"). On Thursday, January 8, 2015, we subsequently spoke and you agreed to narrow your FOIA request to two types of criminal prosecutions: terrorism cases and narcotics cases. We further agreed to have a telephone conference on Tuesday, January 27, 2015, to discuss the status and feasibility of the narrowed FOIA requests. Based upon my research and conversations that I have had with senior attorneys in our Special Prosecutions and Narcotics Bureaus, the SAO does not have the documents that you request regarding the use of cell site simulators in narcotics cases Exhibit C

14 Mr. Matthew V. Topic January 27, 2015 Page 2 or terrorism cases in any type of searchable format. As you may be aware, FOIA does not impose a duty to create lists or other public records for purposes of the statute and the failure to furnish a non-existent record does not violate FOIA. Workman v. Illinois State Board of Education, 229 Ill. App. 3d 459, 463 (2nd Dist. 1992); 2011 PAC (April27, 2012) (same). See also Heinrich v. White, 2012 IL App (2d) , '1[10, 975 N.E.2d 726 (2nd Dist. 2012) (holding that "a request for records not yet created is invalid"). Further, the request that you made would, at a minimum, require someone to speak with multiple Assistant State's Attorneys to determine if they recall working on a criminal case where law enforcement collected evidence or otherwise used a cell site simulator. This, in essence, requires the type of hand count that the Appellate Court found to be unduly burdensome in Shehadeh v. Madigan, 2013 ILApp (4th) , 996 N.E.2d 1243 (4th Dist. 2013) (holding that a FOIA request to the Attorney General's office was unduly burdensome under Section 3(g) offoia). On these legal bases, I am denying Mr. Martinez' FOIA request. PAGE 14 of 15 Even if we could identify the documents that Mr. Martinez' FOIArequest seeks, I would still decline to produce such documents, as they would be exempt from disclosure pursuant to Section 7(1)(d)(v) offoia ("Section 7(1)(d)(v)"). Section 7(1)(d)(v) exempts records in the possession of any public body created by any law enforcement agency for law enforcement purposes where disclosure would: disclose unique or specialized investigative techniques other than those generally used and known or disclose internal documents of correctional agencies related to detection, observation or investigation of incidents of crime or misconduct, and disclosure would result in demonstrable harm to the agency or public body that is the recipient of the request. See 5 ILCS 14017(1)(d)(v) (2015). Mr. Martinez' request for documents pertaining to law enforcement's use of cell site simulators in matters where they are investigating possible drug crimes or possible terrorist acts would certainly reveal "unique or specialized investigative techniques" used in such investigations. Such a disclosure could compromise the investigations of those serious and complex crimes. Under Section 7(l)(d)(v) of FOIA, such documents are exempt from disclosure and, on this alternative legal basis, I am also denying Mr. Martinez' FOIA request. Finally, although I have not seen any documents that would be responsive to your FOIA request, such documents would likely be exempt from disclosure under the attorney-client, work product, deliberative process or law enforcement investigatory privileges. Accordingly, and for the foregoing legal reasons, I respectfully deny Mr. Martinez' FOIA request. Mr. Martinez has a right to appeal this decision to Sarah Pratt, Public Access Counselor, Office of the Illinois Attorney General, 500 S. 2nd Street, Springfield, Illinois 62706, (phone number FOIA) or to seek judicial review under Section

15 Mr. Matthew V. Topic January 27, 2015 Page 3 11 offoia, 5 ILCS 140/11 (2015). Sincerely, Paul A. Castiglione Executive Assistant State's Attorney for Policy 69 West Washington St. Suite 3200 Chicago, Illinois (312) PAGE 15 of 15