Applications for authority to use StingRay (Erie County (NY) District Attorney)

To Whom It May Concern:

Pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records:

Any and all applications submitted to state or federal courts for warrants, orders, or other authorization (including pen register court orders) for use of cell site simulators in criminal investigations, as well as any warrants, orders, authorizations, denials of warrants, denials of orders, denials of authorization, and returns of warrants associated with those applications.

The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, and is not being made 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 look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Robert Galbraith

To Whom It May Concern:

I am writing to follow up with a Freedom of Information Law request I submitted on April 10, 2015.

As you know, the Freedom of Information Law requires an agency to respond with acknowledgement of receipt of a request within 5 business days. As today is the 6th day to begin without any response from your office, if I do not receive such acknowledgement by the close of business today, I will be forced to construe your office's failure to respond as a constructive denial of my request and make a formal appeal.

Thank you for your assistance and I look forward to hearing from you shortly.

Sincerely,

Robert Galbraith

To Whom It May Concern:

This is an appeal of a denial of a Freedom of Information Law request that I made on April 10, 2015.

On April 10, I requested:

Any and all applications submitted to state or federal courts for warrants, orders, or other authorization (including pen register court orders) for use of cell site simulators in criminal investigations, as well as any warrants, orders, authorizations, denials of warrants, denials of orders, denials of authorization, and returns of warrants associated with those applications.

On April 14, I received a response certifying that the District Attorney "does not compile or maintain the records which you seek."

In addition to controverting public statements by Erie County Sheriff Tim Howard that he obtains court orders for all uses of the Sheriff's Office's cell site simulator (commonly referred to as a "StingRay") (See e.g. Michael Wooten, "Sheriff Tim Howard defends cell surveillance program", WGRZ (April 14, 2015) (Available at: http://www.wgrz.com/story/news/investigations/2-investigates/2015/04/14/howard-defends-cell-surveillance/25788147/)), the agency's assertion that they do not create or maintain the records requested conflicts with records released by the Sheriff's Office in response to a FOIL request made by the New York Civil Liberties Union indicating that on October 3, 2014 the Erie County Sheriff and Buffalo Police Department used the StingRay pursuant to a "pen order obtained by BPD detectives/Erie County DA's office." (Erie County Sheriff, Complaint Summary Report 14-068337 (October 3, 2014) (Available at: http://www.nyclu.org/files/releases/Complaint-SummaryReports-%20Redacted.pdf).

The Erie County District Attorney appears to either not have conducted a diligent search for the records requested or falsely certified that such records do not exist. As such, I ask that the agency be compelled to release such records, redacted, if necessary, to comply with the FOIL's privacy protections.

As required by the Freedom of Information Law, the head or governing body of an agency, or whomever is designated to determine appeals, is required to respond within 10 business days of the receipt of an appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as required by law.

In addition, please be advised that the Freedom of Information Law directs that all appeals and the determinations that follow be sent to the Committee on Open Government, Department of State, One Commerce Plaza, 99 Washington Ave., Albany, New York 12231.

Thank you for your assistance in this matter; I look forward to hearing from you shortly.

Sincerely,

Robert Galbraith