Nondisclosure agreements with Harris Corp and FBI (Charlotte-Mecklenburg Police Department)

To Whom It May Concern:

In [an October 18, 2014, article titled "Charlotte police investigators secretly track cellphones,"][1] reporter Fred Clasen-Kelly of Charlotte Observer reported that Charlotte-Mecklenburg Police Department (CMPD) have for eight years owned and operated an IMSI catcher (also known as a cell site simulator) manufactured by Harris Corporation. Regarding a 2012 upgrade to that equipment, he reported that "[Judith] Emken, the city attorney, said nondisclosure agreements with the vendor and FBI prevent her from releasing the information."

[1]: <http://www.newsobserver.com/2014/10/18/4245744/charlotte-police-investigators.html>

Pursuant to North Carolina Public Records Law (G.S. §§ 132-1 through 132-10), I hereby request the following records:

* all nondisclosure agreements between CMPD and Harris Corporation
* all nondisclosure agreements between CMPD and FBI

This should include but not be limited to the nondisclosure agreements to which Ms. Emken referred.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I would request your response within ten (10) business days.

Sincerely,

Phil Mocek

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thanks for your help, and let me know if further clarification is needed.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 18, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thanks for your help, and let me know if further clarification is needed.

Mr. Weaving:

I received your e-mail of September 18, 2015. In it, you requested that I stop e-mailing you and stated that you "have nothing to do with the information [I am] asking for." I don't know or care what it means for you to "have something to do with" these records. I simply want access to and copies of specific public records accordance with the North Carolina Public Records Law.

You are or were designated publicly by your agency as an appropriate contact for requests for public records. I filed such a request on February 2, 2015. More than seven months passed before you or anyone else at your agency acknowledged my request, during which status inquiries have been automatically e-mailed to you twice monthly. You have effectively denied access to the records I seek since February of this year by failing to respond to my request. In doing so, you have violated the law.

Please comply with the law and provide the records I requested as soon as possible. If you are unable to provide them promptly, please estimate the time that you will require in order to do so. If you are barred by law from providing the records or any portion thereof, please cite the specific exemption to North Carolina Public Records Law that applies. If the records do not exist, please state clearly your understanding of what specific records I requested and summarize the search that you performed which led you to determine that they do not exist.

Cordially,
Phil Mocek

Hello Ms. Emken,

It has been indicated that the FOIA request copied below should be forwarded to your for processing. Confirmation of receipt and an estimated date of completion would be greatly appreciated.

Thank you.
_________________________________

To Whom It May Concern:

In [an October 18, 2014, article titled "Charlotte police investigators secretly track cellphones,"][1] reporter Fred Clasen-Kelly of Charlotte Observer reported that Charlotte-Mecklenburg Police Department (CMPD) have for eight years owned and operated an IMSI catcher (also known as a cell site simulator) manufactured by Harris Corporation. Regarding a 2012 upgrade to that equipment, he reported that "[Judith] Emken, the city attorney, said nondisclosure agreements with the vendor and FBI prevent her from releasing the information."

[1]: <http://www.newsobserver.com/2014/10/18/4245744/charlotte-police-investigators.html>

Pursuant to North Carolina Public Records Law (G.S. §§ 132-1 through 132-10), I hereby request the following records:

* all nondisclosure agreements between CMPD and Harris Corporation
* all nondisclosure agreements between CMPD and FBI

This should include but not be limited to the nondisclosure agreements to which Ms. Emken referred.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I would request your response within ten (10) business days.

Sincerely,

Phil Mocek

Dear Ms. Emken:

Could you please specify which exemption to the [North Carolina Public Records Law][1] you believe applies to nondisclosure agreements between your agency and a private business or the FBI? I asked in my e-mail of September 23, but you did not answer. I've read the law, and I am unable to find a relevant exemption.

[1]: <http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_132.html>

Cordially,
Phil Mocek

Dear Ms. Emkin:

I appeal your decision to refuse public access to public records I [requested][1] on February 18, 2015.

[1]: <https://www.muckrock.com/foi/charlotte-161/nondisclosure-agreements-with-harris-corp-and-fbi-charlotte-mecklenburg-police-department-13871/>

I received your e-mail of October 21. In it, you responded to my request from the prior day for you to specify which exemption to the North Carolina Public Records Law you believe applies to nondisclosure agreements between your agency and a private business or the FBI. The entirety of your e-mail message was,"Please see NCGS 132-1.7."

[North Carolina General Statutes Chapter 132][2] ("Public Records") section 1.7 ("Sensitive public security information") states the following:

> (a) Public records, as defined in G.S. 132-1, shall not include information
> containing specific details of public security plans and arrangements or the
> detailed plans and drawings of public buildings and infrastructure
> facilities.
>
> (b) Public records as defined in G.S. 132-1 do not include plans to prevent
> or respond to terrorist activity, to the extent such records set forth
> vulnerability and risk assessments, potential targets, specific tactics, or
> specific security or emergency procedures, the disclosure of which would
> jeopardize the safety of governmental personnel or the general public or the
> security of any governmental facility, building, structure, or information
> storage system.
>
> (c) Information relating to the general adoption of public security plans and
> arrangements, and budgetary information concerning the authorization or
> expenditure of public funds to implement public security plans and
> arrangements, or for the construction, renovation, or repair of public
> buildings and infrastructure facilities shall be public records. (2001-516,
> s. 3; 2003-180, s. 1.)

[2]: <http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_132.html>

A nondisclosure agreement ("NDA") does not contain specific details of public security plans or plans or drawings of buildings or infrastructure facilities. Nor does an NDA include plans to respond to terrorist activity. An NDA contains an agreement to refrain from disclosing information.

The NDA(s) to which I requested access more than eight months ago contains or contain one or more agreements for your agency to refrain from disclosing information about a general-purpose mobile phone surveillance device (an IMSI catcher, also known as a cell site simulator or Stingray) that your agency planned prior to making the agreement to acquire after making the agreement.

An NDA entered into by your agency is a document made or received in connection with the transaction of public business by an agency of North Carolina government or its subdivisions. It is a public record. In the context of records responsive to my request, an NDA is a document that reveals that your public agency agreed to hide from the public the details of its acquisition and/or use of a device intended for use in performing surveillance of the public. This is a device that indiscriminately targets every mobile phone within range of the device. It has been widely reported that law enforcement agencies across the nation have deceived legislators, courts, and the public about such devices. I believe that Charlotte-Mecklenburg Police Department are acting in bad faith in an attempt to keep the public in the dark about use of a controversial device because of the likelihood that the public would be displeased by this use.

Please inform me of what the appeals process entails and when I should expect a determination of outcome.

Cordially,
Phil Mocek

Dear Ms. Emkin:

Please provide an update of the status of my appeal, filed November 9, 2015, of you rejection of my public records request of February 18, 2015.

Cordially,
Phil Mocek

Dear Ms. Emken:

I received your e-mail of February 8, 2017, in which you wrote, "The items remain confidential per the FBI." Is it your position that a record is exempt from mandatory disclosure upon request under state law if someone from the FBI says it is exempt?

If not, could you please specify which exemption to the [North Carolina Public Records Law][1] you believe applies to nondisclosure agreements between your agency and a private business or the FBI? I asked in my e-mail of September 23, 2015, then again on October 20, 2015, but you did not answer. I've read the law, and I am unable to find a relevant exemption.

[1]: <http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_132.html>

Cordially,
Phil Mocek

Dear Ms. Emken:

I received your e-mail of February 13, 2017. In it, you did not answer my question (" Is it your position that a record is exempt from mandatory disclosure upon request under state law if someone from the FBI says it is exempt?") and you did not specify any exemption to the North Carolina Public Records Law that you believe to be applicable. You wrote that "federal law trumps state law." This is the first mention of federal law I have seen in our discussion regarding this matter. That some "items remain confidential per the FBI" is not per se indication that any such confidentiality is based in law. I remain concerned that you may believe that a record is exempt from requirements under state law simply because some employee of FBI says so.

Would you please tell me which federal law or laws you believe to be relevant to your withholding of public access to a record that you might otherwise be required to provide upon request--specifically, the nondisclosure agreement to which you have denied me and other members of the public access?

Cordially,
Phil Mocek

Dear Ms. Emkin:

In an [e-mail][1] from me to you sent September 23, 2015, I asked, "If you are barred by law from providing [all nondisclosure agreements between CMPD and either FBI or Harris Corporation] or any portion thereof, please cite the specific exemption to North Carolina Public Records Law that applies." You have not cited any such exemption.

[1]: <https://www.muckrock.com/foi/charlotte-161/nondisclosure-agreements-with-harris-corp-and-fbi-charlotte-mecklenburg-police-department-13871/#comm-185196>

In an [e-mail][2] from me to you sent October 20, 2015, I asked, "Could you please specify which exemption to the North Carolina Public Records Law you believe applies to nondisclosure agreements between your agency and a private business or the FBI?" In response, you referred to NCGS 132-1.7, but as I wrote in an e-mail to you of November 9, 2015, NCGS 132-1.7 is not relevant, as a nondisclosure agreement ("NDA") does not contain specific details of public security plans or plans or drawings of buildings or infrastructure facilities, and an NDA does not include plans to respond to terrorist activity. Also in that e-mail, I notified you of my appeal of your decision. It is not clear what was the outcome of that appeal, or if you simply ignore it, as I receive no further communication from you in the 14 months that followed.

[2]: <https://www.muckrock.com/foi/charlotte-161/nondisclosure-agreements-with-harris-corp-and-fbi-charlotte-mecklenburg-police-department-13871/#comm-196507>

In an [e-mail][3] from me to you sent February 10, 2017, I asked if it was "your position that a record is exempt from mandatory disclosure upon request under state law if someone from the FBI says it is exempt." You responded three days later without answering my question, but instead asserting that "federal law trumps state law." This is not about law, but about an agreement that your agency made with a private party to hide public records from the public. I again note that despite my repeated requests for such, you did not cite any law backing your assertion that your agency's nondisclosure agreement with Harris Corporation is exempt from disclosure under North Carolina public records law.

Please note that a judge [ruled][4] last week (Mocek and Center for Open Policing v. City of Tacoma and Tacoma Police Department) that in Washington, at least, an agreement like this does not trump state records law. City of Tacoma were fined $50,000 plus attorney's fees for illegally withholding a nondisclosure agreement between them and Harris Corporation.

[3]: <https://www.muckrock.com/foi/charlotte-161/nondisclosure-agreements-with-harris-corp-and-fbi-charlotte-mecklenburg-police-department-13871/#comm-335248>
[4]: <http://www.thenewstribune.com/news/politics-government/article136371963.html>

In an [e-mail][5] from me to you dated February 15, 2017, I requested that you "tell me which federal law or laws you believe to be relevant to your withholding of public access to a record that you might otherwise be required to provide upon request--specifically, the nondisclosure agreement to which you have denied me and other members of the public access." You responded by e-mail that day, but you did not cite any such law, instead asserting 1) that the "FCC license for the equipment requires that CMPD sign a nondisclosure agreement which is also considered confidential under federal law, specifically the Homeland Security Act." However, the Homeland Security Act does not mention nondisclosure agreements. You also stated that "any information regarding the specifics as to the technical details or operational details is also considered protected under federal law and according to the FBI and their policy. (6 U.S.C. 482)" As you are aware, our correspondence, here, is not about a request for any such detail, but rather for your agency's agreement with Harris Corporation to refrain from communicating as-yet-unspecified information. You claimed that FBI "stated that this information is protected under the Arms Control Export Act" but did not reference any such statement. Last, you claimed that "the information is also criminal intelligence under state law," but neither cited any particular state law nor explained how a nondisclosure agreement between your agency and an equipment vendor (in this case, Harris Corporation) could be considered to be criminal intelligence.

[5]: <https://www.muckrock.com/foi/charlotte-161/nondisclosure-agreements-with-harris-corp-and-fbi-charlotte-mecklenburg-police-department-13871/#comm-337098>

Again, I request that you cite any relevant exemption to North Carolina Public Records Law that you believe prohibits your agency from communicating to the public an agreement your agency made with an equipment vendor to refrain from disclosing information to the public. The idea that a city can eliminate its duty under state open government law by making an agreement with a private party is laughable. That such an agreement itself would be exempt from disclosure is ludicrous.

Absent such exemption--which, given your ample opportunity to cite such but failure to do so, along with the unlikely nature of any such exemption's existence--I expect you to comply with the law and provide the record(s) I requested on February 18, 2015.

Cordially,
Phil Mocek