Justice Department sample applications for cell site simulator warrants

Shawn Musgrave filed this request with the Department of Justice - FOIA/PA Mail Referral Unit of the United States of America.
Tracking #

A-2022-00707

CRM-300514453

Status
Rejected

Communications

From: Shawn Musgrave

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

All sample applications for warrants to deploy cell site simulators in all jurisdictions, as maintained by the Computer Crime and Intellectual Property Section (CCIPS) of the Criminal Division.

Per the amended policy on cell site simulators, "Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology" (available at http://www.justice.gov/opa/file/767321/download): "Courts in certain jurisdictions may require additional technical infonnation regarding the cell-site simulator's operation (e.g., tradecraft, capabilities, limitations or specifications). Sample applications containing such technical information are available from the Computer Crime and Intellectual Property Section (CCIPS) of the Criminal Division. To ensure courts receive appropriate and accurate information regarding the technical information described above, prior to filing an application that deviates from the sample filings, agents or prosecutors must contact CCIPS, which will coordinate with appropriate Department components."

As I am submitting this FOIA request in my capacity as a journalist who has covered extensively the deployment of cell site simulators by law enforcement at the federal, state, and local levels, I assert that I am appropriately categorized as a media requester for the purpose of fees. As this request concerns a matter of intense public interest and responsive documents will be posted online for the public to review free of charge, I further request a waiver of any applicable fees.

In the event that there are fees, 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 20 business days, as the statute requires.

Sincerely,

Shawn Musgrave
New England Center for Investigative Reporting

From: MRUFOIA Requests

Sir/Madam,

Please see the attached response to your FOIA request. Please note, your request has been assigned tracking number EMRUFOIA012916-3.

Thank you.

MRU FOIA

From: MRUFOIA Requests

Please see attached revised FOIA response letter. The previous FOIA response letter included the Office of Pardon Attorney due to an error. If you have any questions regarding the status of your request, contact the Criminal Division at (202) 616-0307.

Thank you.

MRU FOIA

From: CRM FOIA

Please see the attached, which is this Office's response to your request. If you have any

questions, please contact the FOIA/PA Unit at 202-616-0307[X] for further assistance.

Thank you,

FOIA/PA Unit

Criminal Division

U.S. Department of Justice

  • 300514453 Musgrave (Acknowledgment Letter - Routed Request)

From: CRM FOIA

Dear Mr. Musgrave,
Please see the attached, which is this Office's status update of your request. If you have any questions, please contact the FOIA/PA Unit at 202-616-0307 for further assistance.
Thank you,
FOIA/PA Unit
Criminal Division
U.S. Department of Justice

From: CRM FOIA

Good Afternoon Mr. Musgrave,
Please find a copy of your requested status report attached to this message. Thanks.

  • 300578376 - Musgrave Shawn - Signed Status Letter - January 18 2017

From: CRM FOIA

Dear Mr. Musgrave,
Please see the attached, which is this Office's status update of your request. If you have any questions, please contact the FOIA/PA Unit at 202-616-0307 for further assistance.
Thank you,
FOIA/PA Unit
Criminal Division
U.S. Department of Justice

From: CRM FOIA

Dear Mr. Musgrave,

Please see the attached, which is this Office's response to your request. If you have any questions, please contact the FOIA/PA Unit at 202-616-0307 for further assistance.

Thank you,

FOIA/PA Unit
Criminal Division
U.S. Department of Justice

From: CRM FOIA (CRM)

Dear Mr. Musgrave,

Please see the attached, which is this Office's status update of your request. If you have any questions, please contact the FOIA/PA Unit at 202-616-0307 for further assistance.

Thank you,

FOIA/PA Unit
Criminal Division
U.S. Department of Justice

From: Department of Justice - FOIA/PA Mail Referral Unit

Dear Mr. Musgrave:

This responds to your status inquiry dated December 4, 2017 concerning your pending Freedom of Information Act request received on February 5, 2016 for records concerning sample applications for warrants to deploy cell site simulators.

Please be advised that your request is being processed on the complex track. On average, it takes the FOIA/PA Unit 203 days to process a complex request. Please note that 203 working days is the average, with fifty percent of cases being completed sooner, and the other fifty percent of cases requiring additional time. At this time, your request has been pending for 461 business days. Potentially responsive records have been received and are under review.

Your continued patience is appreciated and we apologize for the delays in the processing of your request. Please feel free to follow up with the FOIA/PA Unit in sixty days if you would like another status update on your request.

Thank you,

FOIA/PA Unit
Criminal Division
U.S. Department of Justice

From: Department of Justice - FOIA/PA Mail Referral Unit

Dear Mr. Musgrave:

This responds to your status inquiry dated February 5, 2018 concerning your pending Freedom of Information Act request received on February 5, 2016 for records concerning sample applications for warrants to deploy cell site simulators.

Please be advised that your request is being processed on the complex track. On average, it takes the FOIA/PA Unit 203 days to process a complex request. Please note that 203 working days is the average, with fifty percent of cases being completed sooner, and the other fifty percent of cases requiring additional time. At this time, your request has been pending for 502 business days. Potentially responsive records have been received and are under review.

Your continued patience is appreciated and we apologize for the delays in the processing of your request. Please feel free to follow up with the FOIA/PA Unit in sixty days if you would like another status update on your request.

Thank you,

FOIA/PA Unit
Criminal Division
U.S. Department of Justice

From: Muckrock Staff

To Whom It May Concern:
I wanted to follow up on the following request, copied below.

Please let me know when I can expect to receive a response.

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

From: Department of Justice - FOIA/PA Mail Referral Unit

Mr. Musgrave,

Please see the attached, which is this Office's response to your request. If you have any questions, please contact the FOIA/PA Unit at 202-616-0307 for further assistance.
Thank you,
FOIA/PA Unit
Criminal Division
U.S. Department of Justice

From: Shawn Musgrave

To Whom It May Concern:

I hereby appeal the denial in full of this request, which was assigned tracking number CRM-300514453.

First, in denying my request CRM did not address whatsoever the "foreseeable harm" requirement. Even if the cited exemptions apply — which they do not — the agency still has an obligation to disclose the records if it cannot satisfy foreseeable harm requirement. Since CRM made no attempt to address the requirement whatsoever, its denial is inappropriate.

Second, even if the cited exemptions apply — which they do not — the agency must provide reasonably segregable portions that fall outside the cited exemptions. Here, CRM has not sufficiently demonstrated why the records are subject to the cited exemptions in their entirety. As such, CRM has failed to satisfy the requirement of releasing reasonably segregable records.

Third, CRM has failed to demonstrate why privileges under Exemption 5 — here, the attorney-client and/or attorney work product privileges — apply to the documents. In fact, CRM has not even indicated which of these two privileges it considers to apply, merely citing them as "thethe [sic] attorney work-product privilege / the attorney-client privilege." Such a broad invocation of either/both privileges is insufficiently detailed to satisfy CRM's obligations under FOIA.

Finally, CRM has failed to demonstrate why Exemption 7(E) applies. This request concerns sample warrant applications for a law enforcement technology that has been widely covered in the media. Further, the DOJ itself made public the fact that the sample warrant applications are available via a document the DOJ itself published online. See Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology, available online at https://www.justice.gov/opa/file/767321/download. Such official acknowledgement precludes CRM from invoking Exemption 7(E) to withhold the documents in their entirety.

Given the above, DOJ OIP must remand this request for further processing and immediate release of the requested records.

Respectfully,
Shawn Musgrave

From: Department of Justice - FOIA/PA Mail Referral Unit

The Office of Information Policy has received your FOIA Appeal.  Please see the attached acknowledgment letter.

From: Department of Justice - FOIA/PA Mail Referral Unit

The Office of Information Policy has made its final determination on your FOIA Appeal Number A-2022-00707 .  A copy of this determination is enclosed for your review, along with any enclosures, if applicable.  Thank you.

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