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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION Judge Kathleen G Kenneds FREDDY MARTINEZ, i JAN 11 2016 ) Sn Plaintiff, —) Circuit Court 1718 ) v. ) 14. CH 15338 ) CHICAGO POLICE DEPARTMENT, _) ) Defendant. ) OPINION AND ORDER Introduction This case involves Plaintiff's Freedom of Information Act (FOIA) request to Defendant, the Chicago Police Department, regarding Defendant's use of cellular tracking equipment. Plaintiff filed a one-count complaint for “willful violation of FOIA,” which Defendant moved to dismiss pursuant to 735 ILCS 2- 619(a)(9). After considering the complaint, the fully briefed motion, and the submissions and arguments of the parties, the court finds that in all but one respect Defendant failed to meet its burden on its 2-619(a)(9) motion. The court concludes that the motion must be denied, and the court will conduct an in camera examination to determine if the requested records, or any part of them, may be withheld. The reasons for the court's finding and conclusion follow. Procedural History Plaintiff, Freddy Martinez, pursuant to the Illinois FOIA, 5 ILCS 140/1 et seq., requested documents and records from Defendant, the Chicago Police Department, in September 2014. Defendant denied Plaintiff's request because “the requested records, to the extent they may exist” are exempt from release under certain specified FOIA provisions. Specifically, on September 2, 2014, Plaintiff made a FOIA request for the following records * Documents sufficient to show, for each individual occurrence, when, where, how, why, and by whom Chicago Police deployed any devices commonly known as IMSI catchers or “stingrays” (including but limited to Stingray, StingRay II, Amberjack, TriggerFish, Gossamer, Hailstorm (4G LTE upgrade), Harpoon or Kingfish, collectively “IMSI Catchers” as used in any of the requests in this email). + Allsearch warrants for any instances in which Chicago Police deployed IMSI Catchers. * All formal or informal policies, procedures, orders, directives, or other such records that pertain to when, why, where, how, and by whom IMSI Catchers may be deployed. + Allrecords discussing the constitutionality of deploying IMSI Catchers. + Allrecords explaining what happens to data collected by Chicago Police IMSI Catchers, including but not limited to what data is stored and where, retention of collected data, and purging of collected data, for both targets and non-targets of the use of IMSI Catchers. On September 4, 2014, Plaintiff revised part of his September 2, 2014 request to seek, instead of search warrants, “any and all court orders for any instances in which police deployed IMSI Catchers” including “Pen Registers” or other “Trap and Trace” court orders. On September 15, 2014, Defendant denied Plaintiff's FOIA request, explaining that records responsive to the request were exempt from disclosure under eight provisions found in section 7(1) of FOIA: (a) Information specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law, with reference to the Homeland Security Act, Arms Export Control Act (AECA), and International Traffic in Arms Regulations (ITAR) (d) Records in the possession of any public body created in the course of administrative proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would . .. (v) 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. (8 Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. (g) Trade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested. (i) Valuable formulae, computer geographic systems, designs, drawings and research data obtained or produced by any public body when disclosure could reasonably be expected to produce private gain or public loss. (m) Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies. (0) Administrative or technical information associated with automated data processing operations, including but not limited to software, 3 operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical design of computerized systems, employee manuals, and any other information that, if disclosed, would jeopardize the security of the system or its data or the security of materials exempt under this Section. On September 23, 2014, Plaintiff filed his complaint alleging that the Defendant willfully violated the FOIA when it denied his request. Plaintiff asks the court, in part, to declare that Defendant has violated FOIA, order Defendant to produce the requested records under FOIA, enjoin Defendant from withholding non-exempt public records under FOIA, and award Plaintiff reasonable attorneys fees and costs. Defendant filed a motion to dismiss under section 2-619(a)(9) of the Illinois Code of Civil Procedure on December 10, 2014, 735 ILCS 5/2-619(a)(9).. Plaintiff filed his response on July 2, 2015, and Defendant replied on August 31, 2015. Plaintiff filed supplemental authority on November 12, 2015. On November 23, 2015, the parties argued this motion before the court and the court took the ‘matter under advisement. In moving to dismiss Defendant asserts some, but not all of the exemptions set forth in its September 15, 2014 denial letter. Defendant expressly abandoned the 7(1)(m) exemption, and the 7(1)(i) and 7(1)(0) exemptions are not at issue on the motion to dismiss, FOIA Principles The FOIA’s purpose is to open governmental records to the light of public scrutiny. Bluestar Energy Services, Inc. v. Illinois Commerce Commission, 374 Ill. App. 3d 990, 994 (2007). Public records are presumed to be open and accessible. Id. Although FOIA provides exemptions to disclosure, these exemptions are to be read narrowly. Id. Thus, when a public body receives a proper request for information, it must comply with that request unless one of the narrow statutory exemptions set forth in section 7 of the FOIA applies. Illinois Education Association v. Illinois State Board of Education, 204 Il 2d 456, 463 (2003). A public body asserting that a record is exempt has the burden of proving the exemption by clear and convincing evidence. 5 ILCS 140/1.2; Id. at 464. The Illinois FOIA is patterned after the federal Freedom of Information Act, and federal cases can be looked to for guidance in interpreting aspects of the Illinois statute. See Dumke v. City of Chicago, 2013 IL App (Ist) 121668, €14. “When a novel FOIA issue arises regarding the Ilinois FOIA statute, Illinois courts often look to cases citing the federal FOIA statute (5 U.S.C. § 552 (2006)) for interpretation, due to the similarity of the statutes.” State Journal-Register v. University of Illinois Springfield, 2013 IL App (4th) 120881, § 21 (citing Harwood v. McDonough, 344 Ill. App. 3d 242, 248 (1st Dist. 2003)) However, federal court decisions are persuasive but not binding on state courts and “Illinois courts have repeatedly noted that the Illinois version of the FOIA is different from the federal version and is, therefore, subject to a different interpretation.” Shehadeh v. Madigan, 2013 IL App (4th) 120742 § 29, quoting Rockford Police Benevolent & Protective Association, Unit No. 6 v. Morrissey, 398 Il. App. 3d 145, 153 (2d Dist. 2010). To invoke an exemption in section 7 as grounds for refusing disclosure, the public body must give written notice specifying the particular exemption claimed to authorize non-disclosure. Illinois Education Association, 204 Ill.2d at 464. The party 5 seeking disclosure of information under FOIA can challenge the refusal in the circuit court. Bluestar, 374 Ill. App. 3d at 994. The burden at the trial level is on the agency to prove by clear and convincing evidence that the records in question are exempt from disclosure. 5 ILCS 140/1.2; Id. at 995. The court is to “consider the matter de novo,” and “conduct such in camera examination of the requested records as it finds appropriate” to determine if the requested records or any part of them may be withheld under any FOIA provision. 5 ILCS 140/11(0. Section 2-619 Standard FOIA cases should be handled on motions for summary judgment, once the documents at issue are properly identified. Bluestar, 374 Ill. App. 3d at 997. However, a motion to dismiss a FOIA action can be properly brought pursuant to section 2- 619(a)(9). The question presented by a section 2-619 motion to dismiss is whether, when no disputed issues of fact exist, the affirmative matter asserted negates the plaintiff's cause of action completely or refutes critical conclusions of law or conclusions of ‘material unsupported fact. Pang v. Farmers Insurance Group, 2014 IL App (1st) 123204, 9. When ruling on a motion to dismiss under section 2-619 the court must accept all well-pled facts in the complaint as true and draw all reasonable inferences from those facts in favor of the nonmoving party. Coghlan v, Beck, 2013 IL App (Ist) 120891, ] 24 The court should not grant a motion to dismiss pursuant to section 2-619 unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recovery. Id. Because Defendant filed a motion to dismiss, not a motion for summary judgment, the court must decide whether the parties satisfied their respective burdens associated with a section 2-619(a)(9) motion. If the “affirmative matter” that a defendant asserts is not apparent on the face of the complaint, the defendant's motion must be supported by affidavits or other evidentiary materials, Van Meler v. Darien Park Dist., 207 Ill. 2d 359, 377 (2003). Once a defendant satisfies its initial burden of going forward on the section 2-619(a)(9) dismissal motion by establishing its entitlement to a judgment, the burden shifts to the plaintiff to establish that the defense is unfounded or requires the resolution of an essential element of material fact before it is proven. Id. Here, Defendant maintains that the pleading, motion, affidavits, and other materials establish that it has met its burden of showing that its search was adequate and that any withheld documents fall within a FOIA exemption and therefore Plaintiff's claim for willful violation is defeated. Defendant focuses on the fact that Plaintiff's one- count complaint is denominated “willful violation.” However, Plaintiff asks the court, in part, to declare that Defendant has violated FOIA. Thus, at this stage of the proceedings, a 2-619(a)(9) motion, the burden of proof relates to a judgment of a FOIA violation, not a willful FOIA violation. Here, Defendant's entitlement to a judgment as to its search for records requires proof that its search was adequate. Defendant's entitlement to a judgment that requested records are exempt from disclosure under FOIA requires proof by clear and convincing evidence that an exemption applies. Analysis Defendant failed to meet its burden of proof on the adequacy of its sea In order to prevail in a FOIA case, the defending agency has the burden of showing that its search was adequate, Bluestar, 374 Ill. App. 3d at 996. The parties essentially agree that resolving the adequacy issue raises the factual question of whether the search was reasonably calculated to discover the requested documents, not whether the search actually uncovered every document extant. See SafeCard Services, Inc. v. Securities and Exchange Commission, 926 F. 2d 1197, 1201 (D.C. Cir. 1991). Affidavits supplying facts “indicating that the agency has conducted a thorough search” are sufficient to sustain the agency's burden. Bluestar, 374 Ill. App. 3d at 996 (emphasis added). Because affidavits submitted by an agency are accorded a presumption of good faith, discovery relating to the agency's search is unnecessary if the agency's submissions are adequate on their face. Id. at 997. Here, Defendant’s submissions as to the adequacy of its search are not adequate on their face. Discovery is necessary in order to allow for “adequate adversary testing.” See Day v. City of Chicago, 388 Ill. App. 3d 70, 74 (Ist Dist. 2009) In order to satisfy its burden, Defendant submitted the affidavit of Sergeant Jack Costa, who described his search for the requested records. He indicated that he searched all files within the Electronic and Technical Support Section (Tech Lab) of the Bureau of Organized Crime. According to Defendant this is the only unit in which CPD cell site simulator equipment is maintained. However, Sergeant Costa's statement to this effect is based on the best of his knowledge as a supervising sergeant for a team in 8 one of Defendant's bureaus. Additionally, Sergeant Costa interpreted his search to be for documents “in the Tech Lab’s possession.” Costa Aff, $3. Further, Sergeant Costa had only been in his Tech Lab assignment since August 2012, yet the record shows that Defendant first acquired cell site simulator equipment in 2005. Sergeant Costa expressly stated that he searched for copies of court orders and applications for court orders “issued during the time I have supervised the Tech Lab.” (Costa Aff. $4). Thus, on its face, the Costa Affidavit fails to prove a search reasonably calculated to discover the requested documents. Further, some of Defendant's submissions show the inadequacy of the search. In particular, the October 14, 2011 non-disclosure agreement between the FBI and the CPD suggests that records must exist for operator training standards, training schedules, coordination with the FBI, and notification to and written approval of the FBI. In response to Plaintiff’s argument that Defendant should have searched departments other than the Tech Lab, Defendant belatedly raises the unduly burdensome provision of section 3(g) of the FOIA. Though an agency claiming a section 3(g) exemption does not have the burden of showing the adequacy of its search, Shehadeh v. Madigan, 2013 IL App (4th) 120742, ]30, section 3(g) delineates procedures for claiming that the search would be an undue burden. 5 ILCS 140/3(g). The record does not show that Defendant followed those procedures with regard to Plaintiff's FOIA request at issue in this case. Thus, Defendant's reliance on section 3(g) fails. Defendant failed to meet its burden of proof on all but one of its claimed exemptions. To sustain its burden of proof on its claimed exemptions Defendant relies on three substantive affidavits, those of Sergeant Jack Costa, David Rimmeli, and Bradley S. Morrison, as well as the affidavit of Victor H. Castillo, Jr., who essentially laid the foundation for certain documents. Plaintiff responded with numerous exhibits, only some of which counter Defendant's claims. However, Defendant's burden is high. Proof that an exemption applies requires clear and convincing evidence. “Courts have defined ‘clear and convincing’ evidence most often as the quantum of proof that leaves no reasonable doubt in the mind of the fact finder as to the truth of the proposition in question. Although stated in terms of reasonable doubt, courts consider clear and convincing evidence to be more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense.” Bazydlo v. Volant, 164 Ill. 2d 207, 213 (1995). As explained below, Defendant failed to meet its burden of proof on alll but one of its claimed exemptions, and the court will conduct an in camera examination to determine if the requested records, or any part of them, may be withheld, Section 7(1)(a) ~ Prohibited from Disclosure by Federal Law The FOIA exempts “[iJnformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.” 5 ILCS 140/7(1)(@). Defendant claims that the court orders located by Sergeant Costa are exempt from disclosure by Section 3123(d)(1) of Title 18 of the United States Code. 10 Further, Defendant asserts that the Harris manuals it maintains fall under the ITAR and also exempt from disclosure. The United States Code mandates that “[a]n order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that the order be sealed until otherwise ordered by the court.” 18 U.S.C. § 3123(d)(1). Defendant concedes that this statute applies only to the court orders themselves, and not the accompanying applications. Defendant argues that because the court orders approve the use of pen register or trap and trace devices, they are exempt from disclosure. Plaintiff argues that in order to comply with FOIA Defendant had the responsibility to ask the courts to unseal the relevant orders, The mere existence of a seal does not automatically exempt records from production. Morgan 0. United States Department of Justice, 923 F.2d 195, 197 (D.C. Cir. 1991). Rather, the test is whether the seal prohibits the agency from disclosing the information. Id. That is, the inquiry extends to the intended effect of the seal. Id. In deciding Morgan, the D.C. Circuit Court of Appeals distinguished GTE Sylvania, and highlighted that in that case a proper injunction gave an agency no discretion to release records. Id. (citing GTE Sylvania v. Consumers Union of the United States, 445 U.S. 375, 386-87 (1980)). In Morgan, the court recognized that the intended effect of the seal might have been simply to prohibit the public from viewing the documents in the specific public court record. Id, In neither case was the agency required to request that the court documents be unsealed, Id. Here, a federal statute requires that all orders authorizing pen registers or trap and trace devices be sealed until otherwise ordered by the court, and further specifies u that involved parties assisting the application for such a device must also not disclose the existence of such a device. 18 U.S.C. 3123(d). These restrictions go beyond simply prohibiting the public from viewing documents in the court records, and indicate that the purpose of the restrictions is to keep the existence of specific pen registers or trap and trace devices hidden. Further, because the statute mandates the sealing of the court order in all cases involving pen registers and trap and trace devices, there can be no individualized “intended effect” analysis of a seal in a particular case. Thus, the pen register statute prohibits the release of the sealed pen register or trap and trace device court orders in this case pursuant to Plaintiff's FOIA request. Defendant met its burden for dismissal pursuant to 2-169(a)(9) on this narrow issue of law. However, Plaintiff did not request only court orders in which police deployed pen registers or trap and trace devices. Plaintiff also requested court orders in which the police deployed IMSI Catchers. The record reflects that a pen register is a device that records the numbers dialed by a particular telephone, and a trap and trace device records the incoming numbers to a telephone, Further, the record reflects that IMSI Catchers, also known as cell site stimulators or stingrays, can capture a cell phone’s, unique serial number, its location, and the content of calls, text messages, and webpages visited. Because IMSI catchers’ capabilities are broader, it is improper to equate them to. and treat them as pen registers and trap and trace devices. Thus, to the extent that orders address technology other than pen registers and trap and trace devices, they are not exempt under section 7(1)(a) based on 18 USC § 3123(d)(1). 12 Defendant also relies on the ITAR to support its claim that the Harris manuals are exempt from disclosure under section 7(1)(a). The ITAR implements the AECA, which grants the President power to control the import and export of “defense articles and services” through a licensing system administered by the Department of State and to place defense articles on the United States Munitions List (USML), 22 US.C. § 2778(a)(1); 22 C.F.R. Parts 120-130, Defendant asserts that cell site simulator technology is a regulated defense article on the USML meaning that technical information regarding this technology cannot be exported. 22 C.F.R. § 121.1. According to Defendant, the Harris manuals and purchase request and purchase justification memoranda contain such technical information, Section 11(f) of the FOIA, authorizes the circuit court to conduct an “in camera examination of the requested records as it finds appropriate to determine if such records or any part thereof may be withheld under any provision of this Act.” 5 ILCS 140/11 (f). Public bodies may use affidavits to establish that a statutory exemption applies. Day, 388 Ill. App. 3d at 74. When the agency meets its burden through such an affidavit, the court need not conduct an in camera review of the responsive documents. Id, However, affidavits will not suffice “if the public body’s claims are too conclusory, merely recite statutory standards, or are too vague or sweeping.” Id. quoting Illinois Education Association, 204 Ill. 2d at 469. Defendant relies on the affidavit of Bradley Morrison, an FBI supervisory special agent (SSA), to establish that cell site simulator technology is a regulated defense article on the USML. SSA Morrison states that cell site simulator technology is a regulated 13 device on the USML subject to non-disclosure provisions of ITAR, and therefore any technical information cannot be exported unless the “exporter” has been licensed by the Department of State. While SSA Morrison describes his wide-ranging responsibilities which include the FBI's use of cell site simulators, he failed to provide any information substantiating his experience or qualifications regarding the export of regulated defense articles. SSA Morrison's essentially repeats the provisions of the AECA and ITAR cited by the parties. Thus, SSA Morrison’ affidavit is the very type of affidavit that is insufficient to prove an exemption by clear and convincing evidence. It is worth noting here that the record shows that SSA Morrison submitted virtually identical affidavits, not at all specific regarding the particular law enforcement agency involved, in similar cases filed in other states. Defendant also relies on the affidavit of David Rimmeli, a lead Product Line Manager for Harris Corporation to establish that the Harris manuals contain technical information subject to ITAR. Like SSA Morrison's affidavit, Mr. Rimmeli fails to support his conclusion that the manuals are subject to ITAR, other than to state that the manuals say so. Notably, neither affidavit details what information in the purchase request or purchase justification memoranda is subject to ITAR. Defendant failed to meet its burden, and the court finds it appropriate conduct an in camera review. Section 7(1)(d)(v) - Unique or Specialized Investigative Techniques Defendant also claims that the requested documents are exempt under section 7(1)(d)(v), as records which would “disclose unique or specialized investigative techniques other than those generally used and known or disclose internal documents 4 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.” 5 ILCS 140/7(1)(d)(v). According to Defendant, this provision prohibits disclosure of all responsive documents, including court orders, the Harris manuals, and the purchase request and purchase justification memoranda, because they would provide criminals with critical information about the technology’s capabilities, allowing them to thwart law enforcement efforts. Defendant mainly relies on the Morrison affidavit to establish that the records contain information that would disclose unique or specialized investigative techniques. Again, affidavits will not suffice to prove an exemption based on statements that are “conclusory, merely recite statutory standards, or are too vague or sweeping.” Day, 388 Ill. App. 3d at 74. In his affidavit, SSA Morrison details FBI policy regarding the protection of any information regarding cell site simulators and discusses why the disclosure of “even minor details” about the use of cell site simulators can be detrimental to law enforcement efforts and public safety. Morrison Aff. 4% 3-6. However, SSA Morrison fails to mention specifically any of the documents or materials, at issue in this case, nor or does he profess to know any specifics about Defendant's use of this technology. Without knowing what details would be revealed by the records in this case, it is impossible to determine whether their production would disclose information related to unique or specialized investigative techniques. To the extent that the Rimmeli affidavit establishes what is contained within the Harris manuals, the affidavit lacks Rimmeli’s analysis of, as well as his qualifications to analyze, what 15 unique or specialized investigative techniques would be revealed by production of the Harris manuals. Thus, the court finds that Defendant failed to meet its burden of proving by clear and convincing evidence that the court orders and applications, the Harris manuals, and the purchasing orders, and their related materials, are exempt under section 7(1)(d)(v) of the FOIA. It is appropriate to conduct an in camera examination of the records. Section 7(1)() ~ Preliminary Drafts, Notes, etc. Section 7(1)(f) exempts, in relevant part, “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated . . ..” 5 ILCS 140/7(f). Defendant argues that the purchase request and purchase justification memoranda for cell site simulators are exempt under this section. However, none of the affidavits submitted by Defendant demonstrate what information in the purchase requests and purchase justification memoranda falls within this exemption. Defendant has not met its burden of proof on this exemption, and in camera examinatio: appropriate. Section 7(1)(g) ~ Trade Secrets Defendant asserts the “tracle secrets” exemption to support withholding the Harris manuals, and argues that they are both trade secrets and commercial information. To prove this exemption Defendant relies on the Rimmeli affidavit. First, Mr. Rimmeli asserts that the manuals are both trade secrets and commercial information. He provides an overview of what the manuals contain and how they comprise trade secrets, but he never mentions commercial information again. Thus, the 16 assertion that the manuals are exempt as commercial information is based solely on a conclusory statement, and Defendant failed to meet its burden on this exemption. An in ‘camera inspection is appropriate to determine whether the manuals contain commercial information. Defendant relies on Bluestar to define trade secrets in the context of FOIA as “information that (1) would either inflict substantial competitive harm or (2) make it more difficult for the agency to induce people to submit similar information in the future.” Def. Mot. at 8. However, after Bluestar, the Illinois legislature revised section 7(1)(g), and FOIA now requires that the material be a trade secret or commercial or financial information, be furnished under a claim that it is proprietary, privileged, or confidential, and that disclosure would cause competitive harm. 5 ILCS 140/7. The court therefore turns to the common law definition of trade secret, which includes six factors: “(1) the extent to which the information is known outside the employer's business, (2) the extent to which it is known by employees and others involved in the business, (3) the extent of the measures taken by the employer to guard the secrecy of the information, (4) the value of the information to the employer and to his or her competitors, (5) the amount of effort or money expended by the employer in developing the information, and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.” System Development Services v. Haarmann, 389 Ill, App. 34 561, 571 (2009). The Rimmeli affidavit notes efforts taken by Harris to protect the information contained in the manuals, as well as the threat of reverse engineering by competitors in a small market. Additionally, Rimmeli discusses 7 the amount of effort or money expended by Harris in developing the technology and the value of the information to Harris and its competitors. However, Rimmeli fails to show that the information is not known outside Harris's business or the extent to which it is known by Harris employees. Thus, the court finds that Defendant failed to prove by clear and convincing evidence that the Harris manuals are trade secrets exempt under section 7(1)(g). An in camera examination is appropriate. Section 7(1)(v) - Vulnerability Assessments Defendant claims that the Harris manuals are subject to the “vulnerability assessment” exemption because they may be used in terrorism investigations, Defendant relies on the Morrison affidavit to prove this claim. Yet, as stated above, SSA Morrison’s affidavit is insufficient to prove this exemption by clear and convincing evidence because SSA Morrison does not refer to any personal knowledge of these manuals. Thus, Defendant failed to satisfy its burden of proof on the section 7(1)(v) exemption for the Harris manuals. An in camera examination is appropriate. IT IS HEREBY ORDERED: 1. Defendant's motion to dismiss is denied. 2. Defendant shall answer the complaint within 28 days. 3. The parties shall commence discovery on Defendant's search. 4, By January 25, 2016, Defendant shall produce the following documents to the court for an in camera examination: all documents located by Defendant, including court orders and applications referencing any cell site simulator 18 technology, as well as Pen Registers or Trap and Trace devices; the Harris manuals; and the purchase request and purchase justification memoranda. ENTER: Judge Kathleen G Kennedy Circuit Co E 19