While prosecutors are largely shielded from suits, the Supreme Court has ruled they can’t dodge FOIA responsibilities

CHICAGO – Against a backdrop of growing scrutiny into police surveillance nationwide, the office of Cook County State’s Attorney Anita Alvarez was sued today for refusing to comply with a Freedom of Information Act (FOIA) request asking for information her office has about “stingray” cell phone spying equipment.

The suit charges that the State’s Attorney’s Office “has willfully and intentionally violated FOIA by refusing to produce records related to the presentation of evidence obtained through use of cell site simulators on the basis that it would be too ‘burdensome’ and is insufficiently important to justify the work involved to produce the records.”

The suit was brought on behalf of Freddy Martinez, a local activist long concerned with privacy and First Amendment issues who has previously sued the Chicago Police Department for stingray information.

“This spying program may be shielding critical evidence from defense attorneys. A culture of secrecy leads to abuse,” said Martinez. “This lawsuit is a step toward understanding how evidence is gathered and whether the means by which it was obtained is being kept from the accused and the public.”

While suits against prosecutors are rare because the courts have ruled that they have virtual immunity from misconduct suits, the Illinois Supreme Court ruled in Nelson v. County of Kendall, 2014 IL 116303 that State’s Attorney’s Offices are subject to the state’s FOIA law and can be sued for non-compliance.

On December 31, 2014, Martinez filed his FOIA for information about the State’s Attorney’s Office’s use of evidence obtained using stingrays.  The SAO refused even to search for records, claiming it was “too burdensome.”  But as the suit notes, the burden must outweigh the public interest in disclosure and countless privacy groups, media, and even the US Senate Judiciary Committee have questioned law enforcement use of stingrays without adequate Constitutional protections.

“Stingray programs around the country have rightfully come under fire from civil liberties advocates from across the political spectrum,” said Martinez’s attorney, Matt Topic of Loevy & Loevy Attorneys at Law.  “Without warrants or probable cause or sufficient protections for innocent bystanders, their use raises serious Fourth and First Amendment concerns.  The public can’t perform its duty of monitoring government or protect itself from Constitutional violations when law enforcement continues to hide virtually all details about this technology and when it’s being used.”

Loevy & Loevy is the largest civil rights law firm in the Midwest and frequently represents the public in FOIA litigation.

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