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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION KIFAH MUSTAPHA, Plaintiff, v. JONATHON E. MONKEN, individually and in his official capacity as Acting Director of Illinois State Police; PATRICK E. KEEN, individually and in his official capacity as Deputy Director of Illinois State Police; and ILLINOIS STATE POLICE, Defendants. PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH SUBPOENA ISSUED TO FEDERAL BUREAU OF INVESTIGATIONS CHICAGO Plaintiff, KIFAH MUSTAPHA, by his counsel, Kevin Vodak of CAIR-Chicago, respectfully moves this Honorable Court to enter an order mandating that the Federal Bureau of Investigations Chicago fully comply with a subpoena issued pursuant to Rule 45 of the Federal Rules of Civil Procedure. In support thereof, Plaintiff states as follows: I. Background 1. This case involves Defendants’ refusal to accept Plaintiff as the first Muslim No. 10 C 5473 Hon. Ronald A. Guzman Judge Presiding Magistrate J. Keys

Chaplain for the Illinois State Police (“ISP”), purportedly due to his failure to pass a background investigation conducted after an anti-Islamic blogger alleged that Plaintiff was a “radical fundraiser” who was a security threat to the United States. Plaintiff claims that Defendants violated his rights under the First Amendment as well as Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. 2. On January 31, 2011, Plaintiff issued a subpoena to the Chicago office of the

Federal Bureau of Investigations (“FBI-Chicago”), seeking the following materials:

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a. All documents relating to Kifah Mustapha’s application to attend the Federal Bureau of Investigations (“FBI”) Citizens’ Academy in 2010. b. All documents relating to the FBI’s standards for accepting applicants into the Citizens’ Academy held in 2010, including background investigation standards. c. All documents relating to the FBI’s background investigation of Kifah Mustapha prior to including him in the Citizens’ Academy in 2010. (See 1/31/11 Subpoena & Rider, attached as Ex. A.) 3. Plaintiff’s counsel received correspondence from FBI-Chicago’s Associate

Division Counsel, David Habich, on February 14, 2011, requesting that he tender an affidavit or statement in support of the materials requested in the subpoena. (See 2/10/11 letter from D. Habich, attached as Ex. B.) 4. On February 15, 2011, Plaintiff’s counsel complied with Mr. Habich’s request,

tendering a detailed affidavit explaining how the materials sought in the subpoena were directly related to Plaintiff’s case against Defendants and would assist in obtaining appropriate relief. (See 2/15/11 letter from K. Vodak & Affidavit, attached as Ex. C.) 5. As explained in the affidavit, the documents produced by Defendants to date

indicate that FBI agents provided the ISP with various materials from the criminal case United States v. Holy Land Foundation for Relief & Development, No. 3:04-CR-0240-P (N.D. Tex.), to assist in the background investigation of Plaintiff. (Ex. C – Vodak Aff. ¶¶3-4.) 6. During the same time that the ISP was conducting its background investigation of

Plaintiff, FBI-Chicago conducted a background investigation into Plaintiff as a condition for him to participate in the FBI’s six-week Citizens’ Academy program beginning in May 2010. FBIChicago ultimately accepted Plaintiff as a participant in the Citizens’ Academy, and thus found

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that he passed the background investigation. (Ex. C – Vodak Aff. ¶¶5-6.) 7. As referenced in documents produced in this matter, ISP representatives contacted

individuals at FBI-Chicago regarding Plaintiff’s acceptance into the Citizens’ Academy during the ISP’s background investigation of Plaintiff. (Ex. C – Vodak Aff. ¶6.) 8. Plaintiff’s counsel explained in his affidavit that the documents subpoenaed from

FBI-Chicago directly related to Plaintiff’s claims against Defendants, as they would refute the contention that Plaintiff poses any security threat to the United States. To assist in comparing the background investigations conducted by the FBI and the ISP, the subpoena also seeks documents reflecting the standards used to accept applicants in the Citizens’ Academy program. The affidavit explained that the broad standard of relevance under the federal discovery rules mandated disclosure of the subpoenaed documents in this matter. (Ex. C – Vodak Aff. ¶9.) 9. Anticipating an assertion of law enforcement privileges, Plaintiff’s counsel also

noted that the applicable Code of Federal Regulations indicates that such privileges should not apply when disclosure would promote the administration of justice. See 28 C.F.R. § 16.26(c). Given Plaintiff’s request for affirmative relief to obtain the ISP Chaplain position, Plaintiff’s counsel explained that the subpoenaed documents will assist in securing the relief sought from Defendants. (Ex. C – Vodak Aff. ¶10.) 10. On February 25, 2011, Plaintiff’s counsel received correspondence from Mr.

Habich which enclosed five (5) pages relating to Plaintiff’s application to the Citizens’ Academy program. This letter asserted that documents relating to the FBI’s background standards and investigations are “compiled for law enforcement purposes,” and the release of such information “would disclose investigative techniques and procedures the effectiveness of which would thereby be impaired.” Mr. Habich, who consulted with the U.S. Attorney’s Office, failed to

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include a privilege log for any of the documents withheld. (See 2/22/11 letter from D. Habich, attached as Ex. D.) 11. Plaintiff’s counsel immediately responded to Mr. Habich’s correspondence,

noting the deficiency in failing to provide a privilege log and refuting the blanket assertion of a law enforcement privilege for all documents regarding Plaintiff’s background investigation, when he passed this investigation. Plaintiff’s counsel requested that Mr. Habich provide a privilege log by March 2, 2011, as well as contact him to discuss the matter. (See 2/25/11 letter from K. Vodak, attached as Ex. E.) 12. On the date of this Motion, Plaintiff’s counsel received a letter from Mr. Habich

claiming that he “re-reviewed the matter,” acknowledged that the requested documents would be helpful for Plaintiff’s lawsuit, and contended that the FBI was not asserting a law enforcement privilege. Instead, the decision not to comply with the subpoena was based on the applicable federal regulations and United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951). (See 3/2/11 letter from D. Habich, attached as Ex. F.) 13. Based on the correspondence exchanged, Plaintiff’s counsel has engaged in good

faith efforts to resolve the issue of obtaining the subpoenaed documents prior to filing this Motion to Compel, to no avail. II. Standard of Review 14. The federal discovery rules mandate a broad standard of discovery, where parties

may obtain discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense,” and the relevance of requests need only appear “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b). 15. Pursuant to Rule 45, Plaintiff has the right to compel compliance with the

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subpoena to FBI-Chicago, having this Court overrule the objections asserted by Mr. Habich. See Fed. R. Civ. P. 45(c)(2)(B)(i) (“At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.”). Objections to a subpoena based on privilege, which must be made within fourteen (14) days after the subpoena was served, should include a description of “the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.” Fed. R. Civ. P. 45(c)(2)(B), (d)(2)(A). 16. When considering a privilege asserted to a non-party subpoena, this Court “must

apply a balancing test to determine whether the need of party seeking disclosure outweighs the adverse effect such disclosure would have on the policies underlying the [claimed] privilege.” Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 559 (7th Cir. 1984). III. Plaintiff Remains Entitled to the Documents Sought in the Subpoena, as a Protective Order Will More Appropriately Address the FBI’s Confidentiality Concerns 17. Mr. Haben’s latest correspondence reveals that FBI-Chicago failed to assert any

privilege in response to the subpoena, instead relying on a vague assertion that the federal regulations prohibits the agency from producing the requested documents. (See Ex. F – 3/2/11 letter from D. Habich.) FBI-Chicago has thus waived any privilege to the subpoena. 18. A responsible official in FBI-Chicago must “lodge a formal claim of privilege,

after actual personal consideration, specifying with particularity the information for which protection is sought, and explain why the information falls within the scope of the privilege.” Ostrowski v. Holem, No. 02 C 50281, 2003 U.S. Dist. LEXIS 794, at *6-7 (N.D. Ill. Jan. 21, 2003) (finding “sweeping generalization” in asserting privilege to be insufficient) (attached as Ex. G); Hernandez v. Longini, No. 96 C 6203, 1997 U.S. Dist. LEXIS 18679, at *10 (N.D. Ill. 5

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Nov. 12, 1997) (failure to provide particularity of documents which were privileged did not comply with formal claim requirement) (attached as Ex. H). FBI-Chicago also failed to tender a privilege log in accordance with Rule 45 in a timely manner, thereby waiving the assertion of a law enforcement privilege. See Fed. R. Civ. P. 45(c)(2)(B), (d)(2)(A). 19. The Code of Regulations referenced in Mr. Habich’s March 2nd correspondence,

however, appears to mirror the language of a law enforcement privilege. See 28 C.F.R. § 16.26(b)(5) (stating that DOJ should consider whether “[d]isclosure would reveal investigatory records compiled for law enforcement purposes, and would interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would thereby be impaired”). In essence, FBI-Chicago seeks to withhold documents mandated by a judicial subpoena pursuant to a vague reference to internal procedures, thereby circumventing the need to explain the basis for its decision. 20. The case referenced in Mr. Habich’s correspondence decided the limited issue of

whether the Attorney General could foreclose a subordinate from complying with a subpoena. See Touhy, 340 U.S. at 472 (1951) (Frankfurter, J., concurring) (noting limited nature of holding). Based on Mr. Habich’s assertions, FBI-Chicago is not relying on any order from the Attorney General, and instead seeks to evade this Court’s scrutiny by not labeling the rationale a “privilege.” Other courts have rejected such an evasive tactic. See N.L.R.B. v. Capitol Fish Co., 294 F.2d 868, 875 (5th Cir. 1961) (“[W]hen a party has filed a request for evidence or testimony and the request can be properly denied only if the evidence or testimony is privileged, the question of privilege is as squarely raised by an unexplained refusal to comply as by an express claim of privilege, and the court must decide the question.”); F.A.C. Inc. v. Cooperativa de Seguros de Vida, 188 F.R.D. 181, 185-86 (D. P.R. 1999) (following Capital Fish for subpoena

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issued to FBI agents). 21. Without any specificity in the nature of the documents withheld, Plaintiff and this

Court cannot determine the merits of FBI-Chicago’s asserted law enforcement concerns. Plaintiff thus requests that this Court find that the law enforcement privilege has been waived in this matter, and mandate production of the records at this time. Should this Court decide to afford FBI-Chicago further opportunity to rely on the privilege, however, Plaintiff explains below how such an objection must be overruled in this matter. 22. The law enforcement privilege is a qualified one, where “the public interest in

non-disclosure must be balanced against the need of a particular litigant for access to the privileged information.” In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988). The following factors have been used in considering such a privilege: (a) The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (b) The impact upon persons who have given information of having their identities disclosed; (c) The degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (d) Whether the information sought is factual data or evaluative summary; (e) Whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (f) Whether the police investigation has been completed; (g) Whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (h) Whether the plaintiff’s suit is non-frivolous and brought in good faith; (i) Whether the information sought is available through other discovery or from other sources; and 7

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(j) The importance of the information sought to the plaintiff’s case. Id. 23. In a recent case involving the discovery of active investigation files from the City

of Chicago’s Independent Police Review Authority, Magistrate Judge Nolan held that concerns of confidentiality regarding an ongoing investigation were more appropriately addressed by an appropriate protective order rather than barring production of the files. See Santiago v. City of Chicago, No. 09 C 3137, 2010 U.S. Dist. LEXIS 29198, at *10-12 (N.D. Ill. Mar. 26, 2010) (attached as Ex. I). 24. In light of the federal regulations governing the FBI’s production of materials, as

well as the applicable caselaw, Plaintiff’s need for the subpoenaed documents outweighs any public interest in the FBI’s non-disclosure. Based on the materials produced from Defendants’ background investigation, the FBI supplied information from the Holy Land Foundation case which relates to Plaintiff’s activities in the early 1990s. Plaintiff has never been charged with a crime as a result of these activities, and FBI-Chicago’s acceptance of him in the Citizens’ Academy program most likely will reveal that any allegations of misconduct against him were unfounded. (See Compl. ¶¶19-24.) 25. Plaintiff expects much of the information contained in FBI-Chicago’s background

investigation to be factual, which is less likely to be protected by the law enforcement privilege. See Santiago, 2010 U.S. Dist. LEXIS 29198, at *7. Even if certain documents contain the FBI’s evaluation of the facts, such information may be critical in this matter, as the ISP has withheld some of the information in its background investigation received from the FBI based on a law enforcement privilege. Defendant could thus seek to defend Plaintiff’s claims using “secret evidence,” an assertion anathema to the broad standard of discovery in civil cases. 8

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26.

The Department of Justice’s regulations explicitly recognize that production

should occur, regardless of the disclosure of investigative techniques and procedures, when “the administration of justice requires disclosure.” 28 C.F.R. § 16.26(c). Specifically, the regulation notes that civil prosecution and the need to obtain affirmative relief, such as an injunction, are relevant to this analysis. Id. Due to the critical nature of the documents withheld, which may fully refute assertions that Plaintiff poses a security threat, compliance with the subpoena remains in conformance with the applicable regulations. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an order mandating that the Federal Bureau of Investigations Chicago fully comply with Plaintiff’s subpoena issued on January 31, 2011, or for such other relief as law and justice require. Respectfully submitted, KIFAH MUSTAPHA, Plaintiff,

By:

/s/Kevin Vodak________________ Kevin Vodak Attorney for Plaintiff

Kevin Vodak Attorney #: 6270773 Christina Abraham Attorney #: 6298946 Council on American-Islamic Relations, Chicago Chapter (CAIR-Chicago) 28 East Jackson Boulevard, Suite 1700 Chicago, Illinois 60604 Ph: 312.212.1520 Fax: 312.212.1530

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