       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JONATHAN RUDENBERG,         )
            Appellant,      )
                            )
     v.                     )                            C.A. No. N16A-02-006 RRC
                            )
THE CHIEF DEPUTY ATTORNEY   )
GENERAL OF THE DELAWARE     )
DEPARTMENT OF JUSTICE AND   )
THE DELAWARE DEPARTMENT OF )
SAFETY AND HOMELAND         )
SECURITY, DIVISION OF STATE )
        1
POLICE,                     )
              Appellees.    )

                                Submitted: October 31, 2016
                                Decided: December 30, 2016

         On Consideration of the “Statement of Interest of the United States”
                             Filed by the United States.

       STATEMENT OF INTEREST TO BE CONSIDERED IN PART;
               NOT TO BE CONSIDERED IN PART.

                         MEMORANDUM OPINION

Ryan Tack-Hooper, Esquire and Richard H. Morse, Esquire, American Civil
Liberties Union Foundation of Delaware, Wilmington, Delaware, Attorneys for
Appellant Jonathan Rudenberg.

1
  Although the caption as originally filed read, in relevant part, “Delaware Department of Justice,
the Chief Deputy Attorney General,” the Court understands there to be only one Department of
Justice entity, the Chief Deputy Attorney General. The Court has accordingly revised the
caption for clarification.
                                                1
Joseph C. Handlon, Esquire, Deputy Attorney General, Delaware Department of
Justice, Wilmington, Delaware, Attorney for Appellee the Chief Deputy Attorney
General of the Delaware Department of Justice.

Patricia Davis Oliva, Esquire and Rae Meredith Mims, Esquire, Deputy Attorneys
General, Delaware Department of Justice, Dover, Delaware, Attorneys for
Appellee Delaware Department of Safety and Homeland Security, Division of
State Police.

COOCH, R.J.

                                  I. INTRODUCTION

       Jonathan Rudenberg (“Appellant”), identified as a “Delaware small business
owner and security researcher,”2 has appealed a decision of the Chief Deputy
Attorney General in the Delaware Department of Justice to this Court pursuant to
the Delaware Freedom of Information Act (“FOIA”).3 In her decision, the Chief
Deputy Attorney General determined that Appellant was not entitled to certain
information that he had requested from the Division of State Police (“DSP”)
pertaining to its use of cell-site simulators. However, the Chief Deputy Attorney
General determined that the DSP must produce a non-disclosure agreement
referred to by the DSP that prevents the production of the information Appellant
requested.

       After briefing on the appeal was completed, the United States Department of
Justice filed a “Statement of Interest of the United States” (“Statement of Interest”)
pursuant to 28 U.S.C. § 517 in this appeal. Attached inter alia to the Statement of
Interest was a factual “Declaration” of FBI Special Agent Russell D. Hansen. In
stating its position in its Statement of Interest, the United States proffered some
facts not in the record in this case. The Court must now determine to what extent it



2
 Appellant‟s Opening Br. at 4.
3
 29 Del. C. § 10001, et seq. Specifically, Appellant appeals the decision embodied in Del. Op.
Att‟y Gen. 15-IB14 (Dec. 29, 2015).
                                              2
should consider the Statement of Interest, including its new facts, in connection
with the underlying appeal which is required to be “on the record.”4

       This is an issue of first impression in Delaware. The Court holds that it is
not appropriate to consider new facts raised by the Statement of Interest, as this is a
FOIA appeal “on the record.” However, and consistent with the parties‟ positions,
the Court will consider the Statement of Interest only to the extent it makes policy
arguments that are supported by facts established in the proceedings below.
Accordingly, the Court WILL CONSIDER IN PART and WILL NOT
CONSIDER IN PART the Statement of Interest of the United States in
connection with the forthcoming decision on the underlying appeal.

                  II. FACTUAL AND PROCEDURAL HISTORY5

              A. Appellant’s FOIA Request to the Division of State Police

       On May 15, 2015, Appellant had requested information pursuant to FOIA
from the DSP regarding its use of cell-site simulator devices, commonly known as
“Stingrays.”6 Specifically, Appellant requested nine categories of information
pertaining to the DSP‟s use of cell-site simulators:

               1. Records regarding the State Police‟s acquisition of cell site
               simulators, including invoices, purchase orders, contracts, loan
               agreements, solicitation letters, correspondence with companies
               providing the devices, and similar documents. In response to this
               request, please include records of all contracts, agreements, and
               communications with Harris Corporation[, the company with
               which the FBI contracted to have the cell-site simulators
               manufactured].




4
  29 Del. C. § 10005(e).
5
  The facts and procedural history relating to this preliminary issue of the Court‟s consideration
of the “Statement of Interest of the United States” set forth herein are not as extensive as will be
set forth in the later opinion of this Court.
6
  Appellant made his request through an online FOIA request filing system called MuckRock.
http://www.MuckRock.com (last visited Dec. 30, 2016).
                                                 3
2. Records regarding any arrangement or agreement between the
State Police and other law enforcement agencies in Delaware to
share the use of cell site simulators, or any offers by the State
Police to share the use of cell site simulators with other law
enforcement agencies in Delaware.

3. All requests by the Harris Corporation or any other corporation,
or any state or federal agencies, to the State Police to keep
confidential any aspect of the State Police‟s possession and use of
cell site simulators, including any non-disclosure agreements
between the State Police and the Harris Corporation or any other
corporation, or any state or federal agencies, regarding the State
Police‟s possession and use of cell site simulators.

4. Policies and guidelines of the State Police governing use of cell
site simulators, including restrictions on when, where, how, and
against whom they may be used, limitations on retention and use of
collected data, guidance on when a warrant or other legal process
must be obtained, and rules governing when the existence and use
of cell site simulators may be revealed to the public, criminal
defendants, or judges.

5. Any communications or agreements between the State Police
and wireless service providers (including AT&T, T-Mobile,
Verizon, Sprint Nextel, and U.S. Cellular) concerning use of cell
site simulators.

6. Any communications, licenses, or agreements between the State
Police and the Federal Communications Commission or the
Delaware Public Service Commission concerning use of cell site
simulators.

7. Records reflecting the number of investigations in which cell
site simulators were used by the State Police or in which cell site
simulators owned by the State Police were used, and the number of
those investigations that have resulted in prosecutions.

8. Records reflecting a list of all cases, with docket numbers if
available, in which cell site simulators were used as part of the
underlying investigation by the State Police or in which cell site


                                 4
              simulators owned by the State Police were used as part of the
              underlying investigation.

              9. All applications submitted to state or federal courts for search
              warrants or orders authorizing use of cell site simulators by the
              State Police in criminal investigations or authorizing use of cell
              site simulators owned by the State Police in criminal
              investigations, as well as any warrants or orders, denials of
              warrants or orders, and returns of warrants associated with those
              applications. If any responsive records are sealed, please provide
              documents sufficient to identify the court, date, and docket number
              for each sealed document.7


      The DSP denied Appellant‟s request for information, citing a nondisclosure
agreement between the DSP and the United States Federal Bureau of Investigation.
The DSP advised Appellant that the FBI owns the cell-site simulator technology,
and may give state and local law enforcement agencies authorization to use the
technology. The DSP informed Appellant that the FBI required it to enter into a
nondisclosure agreement as a condition on the FBI granting permission for the
DSP to use the devices. Finally, the DSP advised Appellant that “[a] better option
may be to direct your requests to the FBI, Harris Corporation, or Boeing[, another
manufacturer of the devices].”8

                B. Appellant Petitions the Attorney General to Review
                         the DSP’s Response to His Request

       Appellant then petitioned the Attorney General pursuant to 29 Del. C. §
10005(e) to review the DSP‟s response to his FOIA request. The Attorney General
referred the request to the Chief Deputy Attorney General, also pursuant to 29 Del.
C. § 10005(e).

     The DSP then filed a response to Appellant‟s submission. In its response, the
DSP stated that, “in an effort to be cooperative,”9 the DSP contacted the FBI to

7
  Appellant‟s Opening Br. Ex. A at 1-2.
8
  R. at 4.
9
  R. at 14.
                                              5
more fully respond to Appellant‟s request. The DSP further explained to the Chief
Deputy Attorney General that, after communicating with the FBI, the FBI
permitted the DSP to produce records under Categories One and Four so long as
the technical specifications of the devices were redacted. With respect to the other
categories, the DSP stated that the information sought either did not exist or was
protected from disclosure by the non-disclosure agreement.

      After reviewing Appellant‟s petition and the DSP‟s submission to the Chief
Deputy Attorney General in support of its response to Appellant‟s FOIA request,
the Chief Deputy Attorney General determined that the information requested was
protected by the nondisclosure agreement, but that the DSP should produce the
nondisclosure agreement itself.10 The DSP then did so. Appellant then appealed
the decision of the Chief Deputy Attorney General to this Court under 29 Del. C. §
10005(e).

                    C. Appellant Appeals the Chief Deputy Attorney
                        General’s Determination to this Court

       Appellant filed his Notice of Appeal on February 26, 2016 from the
December 29, 2015 “determination” of the Chief Deputy Attorney General.
Appellant makes four claims. First, he asserts that “[t]he Chief Deputy Attorney
General erred by failing to give [Appellant] notice and an opportunity to respond to
the arguments and allegations contained in the State Police submission.”11 Second,
Appellant claims that “[t]he Chief Deputy [Attorney General] erred by failing to
order the State Police to describe the search for responsive records.”12 Third,
Appellant argues that “[t]he Chief Deputy [Attorney General] erroneously found
that the State Police had represented that there were no court orders or related
applications concerning the use of Stingrays” in response to paragraph nine of his
FOIA request.13 Finally, Appellant contends that “[t]he Chief Deputy [Attorney
General] erred by failing to order that the State Police explain what legal authority


10
   Del. Op. Att‟y Gen. 15-IB14 (Dec. 29, 2015).
11
   Appellant‟s Opening Br. at 15.
12
   Appellant‟s Opening Br. at 16.
13
   Appellant‟s Opening Br. at 20.
                                                  6
justified the non-disclosure of each responsive record or part of a responsive
record.”14

     D. The United States Department of Justice Files a “Statement of Interest of the
                                   United States”

          1. The United States Department of Justice Submits Its Statement of
               Interest of the United States Pursuant to 28 U.S.C. § 517

       Oral argument on this appeal was scheduled for October 5, 2016. However,
on September 28, Counsel in the Civil Division, Federal Programs Branch of the
United States Department of Justice in Washington, D.C. filed a “Statement of
Interest of the United States” pursuant to 28 U.S.C. § 517 in this case. Section 517
provides:

                The Solicitor General, or any officer of the Department of Justice,
                may be sent by the Attorney General to any State or district in the
                United States to attend to the interests of the United States in a suit
                pending in a court of the United States, or in a court of a State, or
                to attend to any other interest of the United States.


        In its Statement of Interest, the United States Department of Justice asserts
its interest in keeping the information requested by Appellant confidential. First,
the Statement of Interest sets forth a factual foundation for understanding the use
and restrictions on cell-site simulators. Next, the Statement of Interest discusses
the procedural history of Appellant‟s FOIA request. Lastly, the Statement of
Interest argues why the information requested by Appellant should not be disclosed
under Delaware‟s FOIA. Specifically, the United States Department of Justice
argues that the information sought by Appellant “is specifically exempted from




14
  Appellant‟s Opening Br. at 21. The Delaware Department of Justice submitted a letter to the
Court on May 26, 2016, in which it advised that the Chief Deputy Attorney General of the
Delaware Department of Justice takes no position on the appeal, since the only two adverse
parties are Appellant and the DSP. Appellant has not contested this position.
                                                  7
disclosure by the Federal FOIA, 5 U.S.C. § 552” and “by the common law under
the law enforcement privilege.”15

                2. The Declaration of Special Agent Russell D. Hansen

       Attached inter alia to the Statement of Interest was the September 27, 2016
“Declaration of Russell D. Hansen” (“Hansen Declaration”).16 In his twelve-page
declaration, Special Agent Hansen stated the FBI‟s position on the disclosure of
the information Appellant seeks. Special Agent Hansen described at some length
the development of cell-site simulators, the function and use of the devices, the
legal restrictions governing the devices, and the nondisclosure agreements entered
into by the federal and state law enforcement agencies. Special Agent Hansen also
set forth the procedural history of Appellant‟s FOIA request. Finally, Special
Agent Hansen discussed the position of the “Federal Government”17 on the
disclosure of the information Appellant seeks, including various risks of harm that
could come from disclosure of this information sought by Appellant in his FOIA
request. For example, Special Agent Hansen specifically discussed how “criminals
and terrorists” could use the information “to develop defensive technology, modify
their behaviors, and otherwise take countermeasures designed to thwart the use of
the technology in order to evade detection by law enforcement and circumvent the
law.”18

     E. The Court is Presented with a Preliminary Issue Concerning Whether or to
                What Extent it can Consider the Statement of Interest



15
   Statement of Interest of the United States, Trans. No. 59624044, Rudenberg v. Delaware
Department of Justice et al., C.A. No. N16A-02-006, at 8, 12 (Del. Super. Sept. 28, 2016).
16
   Special Agent Hansen avers that he is “currently assigned as the Chief, Tracking Technology
Unit, Operational Technology Division in Quantico, Virginia.” Declaration of Russell D.
Hansen, Trans. No. 59624044, Rudenberg v. Delaware Department of Justice et al., C.A. No.
N16A-02-006 RRC, at 3-5 (Del. Super. Sept. 28, 2016) [hereinafter Hansen Declaration]. He
states that his declaration is “based upon [his] personal knowledge, upon information provided to
[him] in [his] official capacity, and upon conclusions and determinations reached and made in
accordance therewith.” Id.
17
   Hansen Declaration at 8.
18
   Hansen Declaration at 9.
                                               8
      In light of the United States‟ submission, the Court held a scheduling
teleconference with counsel for all parties on September 30 to discuss how the
Court should proceed in light of the Statement of Interest filed just seven days
before the oral argument on October 5. At the scheduling teleconference, the
Court advised the parties that, before reaching the issues raised in the substantive
appeal, the Statement of Interest presented the Court with a preliminary issue:
whether, or to what extent, it can consider a “Statement of Interest of the United
States” submitted by the United States Department of Justice pursuant to 28 U.S.C.
§ 517 in the context of this FOIA appeal required to be “on the record.”19

       The Court thus requested additional briefing on three discrete issues: (1)
whether the Court should consider the newly proffered facts in the Hansen
Declaration in this “on the record” appeal; (2) if the Court does consider this
declaration, whether the Appellant may take the deposition of Special Agent
Hansen as Appellant has requested; and (3) whether the appeal in any event should
be remanded to the Chief Deputy Attorney General for further consideration by her
of the facts proffered by Special Agent Hansen. The Court indefinitely postponed
the scheduled oral argument in order to resolve these preliminary issues.

III. THE PARTIES’ CONTENTIONS ON THESE PRELIMINARY ISSUES

                                 A. Appellant’s Contentions

       Appellant contends that “[t]he [United States] DOJ should not be permitted
to submit new evidence into this appeal without leave of the parties[.]” However,
Appellant nevertheless takes the position that he is “willing to grant [leave] so long
as [he] can appropriately explore and contest the evidence” by taking the
deposition of Special Agent Hansen, and then submitting a “counter-declaration.”20
Alternatively, Appellant asserts that “if Appellant is not permitted to explore the
basis for the FBI‟s assertions, then Appellant asks the Court to enforce the general
rule that a non-party is not permitted to insert new evidence into a pending
appeal.”21 Finally, Appellant argues that “[t]he Court should not remand the matter
19
   29 Del. C. § 10005(e).
20
   Appellant‟s Letter Oct. 12, 2016 Br. at 2.
21
   Appellant‟s Letter. Br. at 1.
                                                9
to the Chief Deputy [Attorney General],” as a remand would “unduly delay the
resolution of this matter for little substantive benefit.”22

                     B. The Division of State Police’s Contentions

        The DSP contends that “[t]he Court may and should consider the Statement
of Interest of the United States, including any facts raised in the declaration of
Russell D. Hansen,”23 and asserts that “[t]he United States routinely files, and
courts accept—without controversy—such Statements of Interest in various types
of litigation.”24 The DSP argues that “[t]he Court‟s consideration of the Statement
of Interest does not permit Appellant to conduct additional discovery,” as “[t]he
United States files Statements of Interest for a variety of reasons, but often
specifically to „correct the record‟ of a case in which it is not a party.”25 Further,
the DSP asserts “[i]f the Court has additional questions of Special Agent Hanson,
or seeks to further explore the information provided in the Declaration, the
Declaration indicates the Special Agent is available for an ex parte in camera
communication.”26

      The DSP agrees with Appellant that “[t]he Court should not remand this
matter to the Chief Deputy Attorney General,” as “[e]stablishing the precedent of
remand in a FOIA appeal will . . . not effectuate the swift administration of these
types of appeals going forward.”27




22
   Id. at 3-4.
23
   Appellee‟s Oct. 31, 2016 Letter Br. at 1.
24
   Id. at 2.
25
   Id. at 4.
26
   Id. at 6. The DSP does not set forth its position on whether Appellant may, as he requests,
submit a “counter-declaration,” assuming this court permits Special Agent Hansen‟s deposition.
27
   Appellee‟s Letter Br. at 7.
                                             10
                                      IV. DISCUSSION

            A. The Court Will Not Consider the “Statement of Interest of
         the United States” to the Extent it Relies on Facts Set Forth for the
                 First Time in Special Agent Hansen’s Declaration


     1. Overview of the “Statement of Interest of the United States” in This Case


       In “attend[ing] to the interests of the United States,”28 the officer of the
Department of Justice “sent” to represent its interests will typically file a
submission in which the interests of the United States in the pending matter are
articulated. Courts frequently treat the submissions made by the United States
under § 517 as amicus curiae submissions.29 The United States has also filed
declarations of federal government agents with its § 517 submissions.30 In the case
at bar, the DSP accurately observed in its October 31 letter to the Court that “it is
uncontested by the parties that this Court may and should consider the issues and
arguments raised by the United States in its Statement of Interest to the extent that
any facts at issue in the declaration of Russell D. Hansen are not implicated.”31

           2. Consideration by the Court of a Statement of Interest in This
            Delaware Freedom of Information Act Appeal “on the record”

      Appellant argues that the Court should not consider Special Agent Hansen‟s
Declaration unless Appellant is permitted to take his deposition, and then submit



28
   28 U.S.C. § 517.
29
   See, e.g., Georges v. United Nations, 834 F.3d 88, 92 (2d Cir. 2016) (providing “the Executive
Branch „submit[t]ed an amicus curiae brief, pursuant to 28 U.S.C. § 517 . . . .‟”); Williams v.
City of New York, 121 F.Supp.3d 354, 365 n.12, 370 n.18 (S.D.N.Y. 2015) (describing the
United States‟ submission under 28 U.S.C. § 517 as an amicus curiae brief).
30
   See, e.g., Ungaro Benages v. Dresdner Bank AG, 2003 WL 25729923, at *1 n.6 (S.D. Fla.
Feb. 20, 2003) (citing the “Declaration of Stuart E. Eizenstat attached to the Statement of Interest
of the United States” to support the court‟s factual findings on a “Motion to Strike the Statement
of Interest of the United States”).
31
   Appellee‟s Letter Br. at 2.
                                                11
his own “counter-declaration.”32 In 29 Del. C. § 10005(e), the adjudicative process
for alleged violations of Delaware‟s FOIA, Delaware law provides: “Regardless of
the finding of the Chief Deputy, the petitioner or the public body may appeal the
matter on the record to Superior Court.”33

              i. The Scope of “On the Record” Review in Appeals to the
                          Superior Court in Other Contexts

        The Court has found no Delaware case directly on point allowing new
evidence in this type of FOIA appeal, probably due in part to the recency of the
enactment of the statute regarding appeals to the Superior Court. However, this
Court, albeit in another context, has previously discussed the meaning of “on the
record” review. In Ehrlich v. Harris Jewelers Co., an appeal from a decision of the
Unemployment Insurance Appeal Board, this Court stated that “the review here is
strictly limited. The court has no authority, on appeal . . . to make independent
findings of fact.”34 Further, this Court stated its responsibilities with respect to
consideration of facts:

              [One of] [t]he court's . . . dut[ies] on appeal is to decide whether
              the Board correctly applied the law to the facts, as the Board found
              the facts to be. Again, the court has no authority on appeal to make
              its own factual findings and to redecide the case as it sees fit.35




32
   Appellant‟s Oct. 12, 2016 Letter Br. at 1.
33
   29 Del. C. § 10005(e) (emphasis added). This is a relatively recent amendment to Delaware‟s
Freedom of Information Act, effective July 15, 2010. 77 Del. Laws ch. 400 (2010).
34
   Ehrlich v. Harris Jewelers Co., 2003 WL 22048219, at *1 (Del. Super. Aug. 26, 2003). See
also Hubble v. Delmarva Temporary Staffing, Inc., 2003 WL 1980811, at *2 n.3 (Del. Super.
Apr. 28, 2003) (providing: “The Court ignores any new facts or evidence Appellant submits
since this review [of a UIAB decision] is on the record only.”).
35
   Id. Further, the Delaware Supreme Court has held that the function of this Court when
deciding a case on appeal from the Industrial Accident Board is similar to the function of the
Delaware Supreme Court. Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965). The
Delaware Supreme Court held that it will not consider facts that were not established in the
record below. Hubbard v. Unemployment Ins. Appeal Bd., 352 A.2d 761, 763 (Del. 1976).
Accordingly, the scope of this Court‟s factual review is bound by the same restrictions as the
Delaware Supreme Court.
                                              12
      Moreover, in the analogous context of “Appeals from Certain
Commissioners, Boards and Courts,” Superior Court Civil Rule 72(g) requires that
“[a]ppeals shall be heard and determined by the Superior Court from the record of
proceedings below, except as may be otherwise expressly provided by statute”
(emphasis added). The Delaware Appellate Handbook states that, in the context of
an appeal to the Superior Court from a decision in a civil action in the Court of
Common Pleas, “[a]ppeals from the Court of Common Pleas are „on the record‟
and shall not be tried de novo.”36 Likewise, in an appeal governed by the
procedural rules of the Administrative Procedure Act,37 the Delaware Appellate
Handbook provides: “The appeal under the APA is heard on the record and not de
novo . . . . The parties to an appeal are bound by the record before the agency.”38
Although these scopes of review are not specifically stated to be applicable to an
appeal from a FOIA determination made by the Chief Deputy Attorney General,
they provide analogous support for the Court‟s interpretation of the “on the record”
scope of review set forth in § 10005(e).

              ii. Delaware Courts May Consider New Facts for the First
                     Time on Appeal when Statutorily Authorized

       This Court may, however, consider additional facts in the context of an
appeal from an administrative agency when statutorily authorized. For example,
the Superior Court is statutorily authorized by 9 Del. C. § 1314(e) to consider
additional facts in appeals from the New Castle County Board of Adjustment.
That statute provides: “If, upon the hearing, it shall appear to the Court that
testimony is necessary for the proper disposition of the matter, it may take
evidence.”39

       Here, 29 Del. C. § 10005(e) provides no express instruction that the Court
may consider additional evidence. Section 10005(e) only provides that the appeal
is to be taken “on the record.” Accordingly, as 29 Del. C. § 10005(e) contains no
express language comparable to that in, e.g., 9 Del. C. §1314(e), this Court cannot

36
   Delaware Appellate Handbook, § 19.07, at 19-iv (2d ed. 1996); 10 Del. C. § 1326(c).
37
   29 Del. C. § 10142.
38
   Delaware Appellate Handbook, § 19.13, at 19-xvi (2d ed. 1996).
39
   9 Del. C. § 1314(e).
                                              13
consider additional facts in this Freedom of Information Act appeal “on the
record.”

                iii. Special Agent Hansen’s Declaration Contains Facts
              that Cannot be Considered in an Appeal “On the Record”

       Here, Appellant correctly argues that the Hansen Declaration adds new facts
that were not a part of the record on appeal. Appellant now wishes to take Special
Agent Hansen‟s deposition and then submit his own “counter-declaration” should
the Court consider the new facts proffered in the Hansen Declaration. But, in his
October 12, 2016 letter to the Court, Appellant stated: “if Appellant is not
permitted to explore the basis for the FBI‟s assertions, then Appellant asks the
Court to enforce the general rule that a non-party is not permitted to insert new
evidence into a pending appeal.”40 (The Court notes that not only is a “non-party”
prevented from inserting new evidence into a pending appeal, but the same is also
true for parties to the appeal.)41 As it is clear to the Court that it cannot consider
new facts set forth for the first time in this FOIA appeal “on the record,” the Court
will not consider the new facts set forth in the Declaration. Accordingly,
Appellant‟s request to take Special Agent Hansen‟s deposition and submit a
“counter-declaration” is moot.

                    iv. The Record Indicates that the FBI had the
                Opportunity to Work with the DSP in Establishing the
               Factual Foundation for Responding to Appellant’s FOIA
                                      Request

      Notably, some of the important facts set forth in the Hansen Declaration are
also contained in the record below, evidencing the way in which the FBI had the
opportunity to assist the DSP in laying the factual foundation for the DSP to
respond to Appellant‟s FOIA request. The similar facts are set forth in two
documents: a letter dated May 23, 2012 from the FBI to the DSP regarding the

40
  Appellant‟s Letter. Br. at 1.
41
   See, e.g., Draper v. State, 146 A.2d 796, 800 (Del. 1958) (providing that the defendant could
not supplement the record before the Delaware Supreme Court with a factual affidavit suggesting
his innocence).
                                              14
“non-disclosure obligations,”42 and the DSP‟s July 6, 2015 submission to the Chief
Deputy Attorney General.43 In its May 23, 2012 letter from the FBI to the DSP,
the FBI set forth the non-disclosure agreement to which the DSP would be bound
if they wished to use the cell-site simulator technology. In the letter, the FBI
stated:

               disclosing the existence of and the capabilities provided by such
               equipment/technology to the public would reveal sensitive technological
               capabilities possessed by the law enforcement community and may allow
               individuals who are the subject of investigation wherein this
               equipment/technology is used to employ countermeasures to avoid
               detection by law enforcement.44


       Additionally, the DSP discussed the FBI‟s position in its July 6, 2015
submission to the Chief Deputy Attorney General. In that submission, the DSP
stated, with respect to the use and capabilities of cell-site simulators, “[c]ell site
simulators allow law enforcement to gather information about all cell phones in a
given area and to track individuals through their cell phone. . . . Cell phones
bounce off cell site simulators as they would a normal cell tower, allowing law
enforcement to collect information.”45 With respect to the nondisclosure
agreements, the DSP asserted in its submission that “[c]ell site simulator
technology is held exclusively by the FBI through two suppliers—Boeing and the
Harris Corporation and provided only to law enforcement agencies upon an
agreement to hold all information relating to the technology confidential.”46
Accordingly, facts similar to those pertaining to the use, restrictions, and non-
disclosure agreements set forth in Special Agent Hansen‟s Declaration exist in the
record below.

     v. The Authorities Cited by the DSP in Support of Its Position that the Court
           Should Consider the Declaration are Distinguishable in this Case



42
   R. at 30.
43
   R. at 11.
44
   R. at 30.
45
   R. at 11.
46
   R. at 12.
                                                 15
       In support of its position that the Court should consider the Hansen
Declaration, the DSP relies on four cases from other jurisdictions in which
declarations submitted in conjunction with a Statement of Interest were considered.
However, in all of these cases, the Statements of Interest with their attached
declarations were submitted at the trial court level while the litigation was still in
the fact finding stage.47

        Thus, in Ungaro-Benages v. Dresdner Bank A.G., the trial court considered
a declaration submitted with a Statement of Interest under 28 U.S.C. § 517 while
limited discovery was proceeding on a pending motion for summary judgment.48
Similarly, in Hunter v. District of Columbia, the trial court considered a declaration
in the context of a motion to dismiss the plaintiffs‟ complaint.49 In Sokolow v.
Palestine Liberation Organization, the declaration was submitted to the trial court
in conjunction with the plaintiffs‟ motion to require a bond after a judgment was
entered in favor of the plaintiffs.50 Finally, in Faith Action for Cmty. Equity v.
Hawaii Dep’t of Transp., the declaration was submitted to the trial court in the
context of a motion to dismiss on grounds of lack of subject matter jurisdiction and
failure to state a claim upon which relief could be granted.51 Thus, in all four cases
relied on by the DSP, it appears that the declarations were proffered while the
litigation was still in the fact-finding stages under the purview of the trial court.
Such is not the case here in this appeal “on the record.”



47
   In two of the cases, Sokolow v. Palestine Liberation Organization and Faith Action for Cmty.
Equity v. Hawaii Dep’t of Transp., no decision was apparently ever issued by either of the two
courts showing that the court considered a submission made pursuant to 28 U.S.C. § 517.
48
   2003 WL 25729923, at *1 (S.D. Fla. Feb. 20, 2003). The motion for summary judgment in
this case had initially been filed as a motion to dismiss, but the motion to dismiss relied on
evidence not contained in the pleadings. Accordingly, the court converted the motion to a
motion for summary judgment and permitted the parties to take limited discovery with respect to
the arguments set forth in the motion.
49
   64 F. Supp. 3d 158, 165 (D.C. Cir. 2014).
50
   Declaration of Anthony J. Blinken,, Sokolow v.Palestine Liberation Organization (No. 1:04-
cv-00397-GBD-RLE) (S.D.N.Y. 2015). Although an order was issued regarding the plaintiff‟s
motion, no written decision was apparently issued in which the Court expressly considered the
declaration.
51
   Statement of Interest of the United States of America, Ex. 1, Faith Action for Cmty. Equity v.
Hawaii Dep’t of Transp. (No. 1:13-cv-00450-SOM-RLP) (D. Haw. 2014).
                                               16
       The DSP also cites U.S. ex rel. Budike v. PECO Energy for the proposition
that “[t]he United States files Statements of Interest for a variety of reasons, but
often specifically to „correct the record‟ of a case in which it is not a party.” 52 In
Budike, the United States filed its submission under § 517 to “correct the record”
with respect to a statement made by the plaintiff in his memorandum to the court:

                 The Government seeks to clarify Relator‟s statement that “[t]he
                 U.S. Attorney‟s office informed the Relator that if he chose to
                 amend his Complaint that it might permit his case to move
                 forward.” The Government explains [in its Statement of Interest]
                 that it “did not attempt to condition the relator‟s right to proceed
                 upon amendment of the complaint.” Rather, the Government‟s
                 counsel “suggested to relator‟s counsel that since she was not the
                 counsel who had originally filed the action on relator‟s behalf, she
                 might wish to examine the then-filed complaint and to determine
                 for herself whether it met the standards of particularity in Rule
                        53
                 9(b).”


      Accordingly, in Budike, the United States sought to make a factual
correction to the record. Moreover, in Budike, the § 517 submission was filed
while the case was in the fact finding stages before the trial court, not in the
context of an appeal “on the record.”

       As the scope of the Court‟s review here is “on the record,” the Court has
harmonized its consideration of the Statement of Interest with the procedural rules
of Delaware‟s FOIA. In this appeal “on the record,” this Court is not authorized to
allow the United of States to “correct the record.” Moreover, neither the United
States nor the DSP has advised that they seek to correct any misstatement of fact in
the record below. Rather, the Statement of Interest in this case presents some
additional facts to the Court that were not presented to the Chief Deputy Attorney
General. Accordingly, the DSP‟s reliance on Budike is inapposite, as the Court is




52
     Appellee‟s Letter Br. at 4.
53
     U.S. ex rel. Budike v. PECO Energy, 897 F.Supp.2d 300, 313 (E.D. Pa. 2012).
                                                 17
not authorized to permit the United States or a party to “correct the record”
below.54

 vi. The Court Will Consider the Statement of Interest to the Extent it Makes Policy
                   Arguments Supported by Facts on the Record

       In its Statement of Interest, the United States relies on Special Agent
Hansen‟s Declaration in two ways. First, the United States relies on Special Agent
Hansen‟s Declaration to set forth the background for its submission.55 Second, the
United States uses the Declaration to argue the policy reasons for which it believes
the information Appellant seeks should not be disseminated to the public.56
Accordingly, to the extent the Statement of Interest of the United States relies on
factual assertions made in Special Agent Hansen‟s Declaration are not in the
record on appeal, the Court will not consider the Statement of Interest, as the scope
of review on appeal is “strictly limited” to the facts in the record.57 However, to
the extent the Statement of Interest of the United States asserts policy arguments
supported by facts contained in the record below, the Court will consider those
policy arguments in reaching its decision on the substantive appeal.58 As the DSP
stated in its letter brief, “it is uncontested by the parties that this Court may and

54
   However, this is not to say that the Court cannot theoretically make its own contradictory
findings of fact even under a potentially deferential standard of review if it concludes that the
findings of the Chief Deputy Attorney General are “clearly wrong.” See Levitt v. Bouvier, 287
A.2d 671 (Del. 1972). However, the Court has requested supplemental briefing, infra page 21,
on the applicable standard of review in this appeal.
55
   Statement of Interest of the United States, at 3-5.
56
   Id. at 9-10, 12.
57
    Ehrlich, 2003 WL 22048219, at *1. Assuming, arguendo, that the Court were to consider
Special Agent Hansen‟s declaration, this Court notes that discovery—which Appellant seeks to
conduct if the Court were to consider the Declaration—“is rare in FOIA cases.” Judicial Watch,
Inc. v. Department of State, Civil Action No. 13-cv-01363-EGS, at *8 (D.D.C. May 4, 2016). In
Judicial Watch, Inc., the United States District Court for the District of Columbia stated that
discovery in FOIA cases is an “extraordinary practice.” Id.
58
   It is also noteworthy that Appellant cited an article in which the use, capabilities, and legal
restrictions are discussed, thereby (so argues the DSP) constituting an attempt to introduce “new
facts” into the record on appeal. Appellant‟s Opening Br. at 3 n.2. The DSP asserts that
Appellant himself has thereby sought to interject new facts into the record. The Court in any
event will consider this article not for the purpose of expanding the record, but for the purpose of
considering the policy arguments asserted in the underlying appeal insofar as they are supported
by the facts in the record. See infra at Part IV.B.
                                                18
should consider the issues and arguments raised by the United States in its
Statement of Interest to the extent that any facts at issue in the declaration of
Russell D. Hansen are not implicated.”59

       B. Appellant’s Citation to an Article in the Harvard Journal of Law and
Technology in Its Opening Brief in the Substantive Appeal Will Not be Considered
      to the Extent it Relies on Facts Not Established in the Record Below

       In his Opening Brief, Appellant relies on a 2014 article, Your Secret
Stingray’s No Secret Anymore: The Vanishing Government Monopoly over Cell
Phone Surveillance and Its Impact on National Security and Consumer Privacy by
Stephanie K. Pell and Christopher Soghoian, published by the Harvard Journal of
Law and Technology that discusses, generally, the use of cell-site simulators.60
The DSP contended in its Answering Brief61 and also in its October 31, 2016
Letter Brief that in doing so, Appellant was attempting to “introduce[] significant
and erroneous „new facts‟ into the record . . . not otherwise contained in the record
[below].”62

       The scope of this eighty-one page law review article is quite extensive:

              Part II of this Article begins by naming this “secret” surveillance
              technology and describing its capabilities. Part III goes on to
              address the limited Department of Justice (“DOJ”) guidance and
              case law pertaining to this technology. Part IV discusses what
              appears to be a concerted effort by the U.S. government to prevent
              the public disclosure of information about this technology. Part V
              reveals, however, that the existence of the technology is both
              publicly known and acknowledged by governments in other
              countries. Part VI describes how foreign governments and

59
   Appellee‟s Letter Br. at 2.
60
   Appellant‟s Opening Br. at 3; Stephanie K. Pell & Christopher Soghoian, Your Secret
Stingray’s No Secret Anymore: The Vanishing Government Monopoly over Cell Phone
Surveillance and Its Impact on National Security and Consumer Privacy, 28 HARV. J.L. & TECH.
1 (2014).
61
   Appellee‟s Ans. Br. at 32 n.4
62
   Appellee‟s Oct. 31, 2016 Letter Br. at 4.
.
                                              19
                 criminals can and do use cellular surveillance equipment to exploit
                 the vulnerabilities in phone networks, putting the privacy and
                 security of Americans' communications at risk. Part VII argues
                 that the public is paying a high price for the U.S. government's
                 perpetuation of a fictional secrecy surrounding cell phone
                 surveillance technology. Specifically, such fictional claims of
                 secrecy prevent policymakers from publicly addressing the threats
                 to the security of cellular communications. Part VIII argues that
                 cellular network vulnerabilities should be addressed publicly in the
                 larger cybersecurity policy process Congress is currently
                 undertaking. Finally, Part IX examines possible technical avenues
                 through which solutions could come.63


       The article contains many factual assertions, far too numerous to list, not
contained in the record below. Accordingly, as this is an appeal “on the record,”
the Court will not consider these factual assertions. However, to the extent the
policy arguments contained in the article are supported by the facts contained in
the record, the Court may consider the article.

          C. Remand to the Chief Deputy Attorney General is Not Appropriate

      The parties and this Court agree that it is not necessary to remand this matter
to the Chief Deputy Attorney General, because such remand, assuming (without
deciding) that such action is permitted by law, would unduly delay the matter.

                                       V. CONCLUSION

      Therefore, the Court will CONSIDER IN PART and NOT CONSIDER
IN PART the “Statement of Interest of the United States” in the underlying appeal.
Nothing in this opinion precludes the parties from continuing to assert the
arguments set forth in the original briefing.

          IT IS SO ORDERED.



63
     Pell & Soghoian, supra note 57, at 8.
                                                 20
       Additionally, the Court believes that supplemental briefing is necessary on
three issues:

       (1) Appellant contends in the underlying appeal that the standard of review
in this FOIA appeal is “de novo review of law and facts.”64 The Court is unsure of
the position of the Division of State Police as to the applicable standard of review.
The statute is silent on this issue. The Court wishes the parties to address a) the
potential applicability of the standard of review set forth in Levitt v. Bouvier,65 or,
b) if Levitt is thought not applicable, what other standard of review applies in this
FOIA appeal.

       (2) The Statement of Interest sets forth the United States‟ argument (which
the Court assumes is adopted by the Division of State Police) that the disclosure of
the information sought by Appellant is exempted by the federal FOIA, 5 U.S.C. §
552(b)(7)(E). Exemption under federal statute may be contemplated in Delaware‟s
FOIA at 29 Del. C. § 10002(l)(6).

      (3) The Statement of Interest also sets forth the United States‟ position
(which the Court assumes is adopted by the Division of State Police) that
disclosure of the requested information is prohibited by the common law “law
enforcement privilege.”




64
   Appellant‟s Opening Br. at 14. The “standard of review” differs from the “scope of review,”
discussed at pages 10-18 of this opinion, in that the “scope of review” is what evidence an
appellate court can consider. Delaware Appellate Handbook, § 6.02, at 6-iv (2d ed. 1996). By
contrast, the “standard of review” pertains to how the reviewing court conducts its analysis of the
facts and law, and typically sets forth the amount of deference to give to the previous
adjudicator. Id. at 6-v.
65
   Levitt v. Bouvier, 287 A.2d 671 (Del. 1972) (holding that “if [facts] are sufficiently supported
by the record and are the product of an orderly and logical deductive process, in the exercise of
judicial restraint we accept them, even though independently we might have reached opposite
conclusions.”); see also Baker v. Connell, 488 A.2d 1303 (Del. 1985) (applying Levitt v. Bouvier
to an appeal to the Superior Court from an administrative agency).
                                                21
      Appellant‟s Opening Letter Memorandum shall be due January 13, 2017;
Appellee Division of State Police‟s Response due January 23; and Appellant‟s
Reply due February 2. Oral argument is scheduled for February 27 at 9:30 a.m.




                                                  /s/ Richard R. Cooch
                                                      Richard R. Cooch, R.J.

cc: Prothonotary




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