8/9/2019 CASA MPIA Request to Anne Arundel County - Response Dated April 29, 2009

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MARYLANDCounty :xeeutiVf John n:. lMpold2660 Itlva Road. 4'" Fl/lOrP.O. Box 6675A n n l l p [ ) l i ~ , M a r y r ~ m d :;2lll(lJ410-222-788114102227835 FiL't

Office of La\tVJonathan A6 Hoogson, County Attorney

April 29, 2009

Andrew J. MurraySupervising County Attorneyamurray@:laacounty.org

Re: CASA de Maryland. Inc. v. Anne Arundel Office o/the County Executive., et at.No. 303286-V

Thank you for your letter of April 10. Thi:s will respond to the concerns you raisedtherein. It is the County's desire to disclose aU documents it has responsive to Casa deMaryland's request as the law will allow. I will address your concerns in the order in which theywere raised.

A. Destruction of Records

I am not aware of any facts that s1..lggest e-maiIs were deleted in violation of law orCounty policy. As you have noted, the law requires an agency to have an approved retentionschedule. The County's e-mails were deleted based upon a retention schedule prior to yourrequest. No suggestion has been made that the appJicable retention schedule is in violation of helaw. Further, no one "willfully" destroyed e-rnails. At most. there may have been a viola.tion ofthe County's e-mail printing policy but even that proposition is dubious. Not all e-mails arerequired to be printed,1 However, out of a spirit of cooperation and in an eITort to be as completeas possible, ] have directed Our Office of rnfonnation Technology to retrieve any available backup tape(s) covering the time specified in your request. I am informed that a back-ltp tape coveringthe month of June was preserved for unrelated litigation but that any c-mails that precede June,2008 have been lost. My paralegal will search the tape using the search tenns you have provided.This retrieval/search will take three weeks to accomplish. I will provide you with any recoveredc-mails not subject to a p r i v i l e ~ e . 1 Contrary to your a s s ~ r t i c n r S g ~ , ~ h e l a n waS not mistaken in h is bel ief that.... )AC:Pl) . . :.6Leks a poli l : :Y on trlc c . : ~ t : ' - ' ~ . ! L ' J t : i.()rl ()f ( . ~ - r L l r J . i l . In f a c t , L h l ~ t . C ~ ~ i, s ,"to F)olicyunique to th e D e ~ a r t m e n t . As you noted, a County-wide policy tha t wasprovi.d,cd t: o :ic,'..J !:In(\ ' l ihlCh i s 3pplic.: lb:"l to t\H:\ Po::',ice D ' ~ p . : t r t . n H ~ n l . . r . - l l r . l : h ~ r / Sg t . PheL.:tn ;>Ias not, d l ~ p c 5 e d as a R u l " ~ ? -41? (d ) c ~ J r p o r a t e ( " J , ; ~ : - ; . i 9 n ~ ~ ~ t ~ ) i ; l n S W ~ t : gener a l q ~ e s t i o n s ~ b 0 ~ ~ ~ Q ~ n t y or County ~ o . L ~ e pal icicD.

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B. Addition.al Searches for RecordsI have directed Sgt- Phelan to inquire of each officer assigned to the operation, including

Detective M e n d o z a ~ to search for notes, documents, and their computers (including portablemedia) and provide the results to him. Lt. Hodge and Chief Teare have also been given thisrequest. The results will be forwarded to you.There is no recoverable search Jog for the Tiburon system. We have retrieved the relevantteletype logs for June 30,2008. There are two sets of documents because there were twooperators handling calls from the same channel. These will be provided to you. However, ont of aconcern for the release of criminal history record information, which is prohibited by law (seeCOMAR 12.15.01.10 and Criminal Procedure Art. 10-201 et seq.), matters unrelated to the ICEoperation will be redacted. Out of the same concerns, the teletype channel recording cannot be

.released in its entirety. To redact unrelated matters from the teletype tape and isol.ate only thoserelevant to your request would require the expenditure of at least 20 m a n ~ h o u r s . As a practicalmatter, the substantive equivalent is contained in the 'Written teletype logs which we have agreedto provide. Accordingly, I respectfully ask that you withdraw your request for this tape (it wouldbe unintelligible to an untrained ear in any event).

The individual officers who participated in the operation were not patrol officers rather,they were from variQus specialized units. Accordingl.Yl there are no ::patrol rosters" responsive toyour request. All operation participants' payroll time sheets as maintained on the Department'sEnterpri5c E-Time system will be forwarded to you as requested. These records reflcct timesubmitted for regular and/or overtime pay.

The monthly activity log maintained by Detective Mendoza will be provided. However, itcontains investigative infonnation about unrelated matters that are outside the scope of yourrequest. AccQtdifigly, the uflte!ated matters will be redacted.

Finally, simply because the County is in receipt of investigative documents andinfonn.ation prepared by rCE does not obligate the County to disclose them. Jfthe informationsought would not be availabl.e thTOUgh the agency that created it (in this case, reE via the FederalFreedom of Information Act), the MPIA connot independently authorize release_ See 10-615(2)and 89 Opinions of the Attomey General 31, 44 (2004). The ICE "Enforcement Operation Plan"was properly withheld. Further, Sgt. Phelan's instruction to Detective Mendoza to search forrecords on the "C(mntY-8ide" was entirely appropriate. I respectfully disagree with your positionthat the County is responsible for the production oftnforrnation that Detectlve Mtlndoza has orhad on an ICE computer system. Detective Mendoza, for purposes of the operation, was an ICEagent. Further, I have no authority to require that ICE search and produce information on itssystem. As I am sure you could appreciate, even if I made such a request it would undoubtedly bemet with a denial. I ccrtai.nly cannot ask Det. Mendoza to search ICE's system without itsknowledge or appr(lval.

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C. Documents WithheldThe narratives contained in the Request for Transfer of Seized Property ("OAG" ron:n.s)were redacted pursuant to 10-618(t) as stated in Lt. Hodge's letter to you dated October 28,2008. These narratives contain investigative informatiOn regarding the June 30, 2008 ICEoperation. ICE's "Enfon;;ement Operations Plan" was denied on the same basis. A g a i n ~ I disagreewith your position that simply because the County is in receipt of investigative documents and

information prepared by ICE that it is obligated to disclose them. If the information sought wouldnot be available through the agency that created it (in this case, ICE via Federal Freedom ofInformation Act), the NlPIA cannot independently authorize release. See 10-615(2) and 89Opinions ofthe Attorney General]l, 44 (2004). However, I understand that the need to continuewithholding this infonnation may no longer exist. I am presently trying to confinn this with ICEOf , alternatively, obtain a sworn statement from them attesting to the need to continuewithholding it. If such i!l not forthcoming shortly, these documents will be provided to you incomplete, un-redacted form. Finally, I will provide you with a copy of the County's "OperationTouch-Upll document with the names of the ICE agents disclosed.

D. Office of County ExecutiveDo not be alanned by the absence of information from the Office of the COWltyExecutive. The County Executive does not use a computer nor docs he have one in his office. Hedoes not communicate via e-mail. Any communication he may have had would have been viatelephone. If you require, I will get an affidavit from him to verify this.

All information that r. have agreed to provide to you will be forthcoming shortly with theexception of the ewmaU search results, which will be disclosed when the search is completed.After you have had a chance to digest these additional materials, kindly contact me so that wecan discuss a resolution of Casa de Marylandls claim.S i n c e r e l y ~ tJj),J -"Andrew j . ~ a y Supervising County Atto4J

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