Office of La\tV

MARYLAND
Jonathan A6 Hoogson, County Attorney
County :£xeeutiVf John n:. lMpold Andrew J. Murray
Supervising County Attorney
2660 Itlva Road. 4'" Fl/lOr
amurray@:laacounty.org
P.O. Box 6675
Annllp[)li~, Maryr~md :;2lll(lJ
410-222-78811
410·222·7835 FiL't

April 29, 2009

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

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

A. Destruction of Records

I am not aware of any facts that s1..lggest e-maiIs were deleted in violation of law or
County policy. As you have noted, the law requires an agency to have an approved retention
schedule. The County's e-mails were deleted based upon a retention schedule prior to your
request. No suggestion has been made that the appJicable retention schedule is in violation of the
law. Further, no one "willfully" destroyed e-rnails. At most. there may have been a viola.tion of
the County's e-mail printing policy but even that proposition is dubious. Not all e-mails are
required to be printed,1 However, out of a spirit of cooperation and in an eITort to be as complete
as possible, ] have directed Our Office of rnfonnation Technology to retrieve any available back-
up tape(s) covering the time specified in your request. I am informed that a back-ltp tape covering
the month of June was preserved for unrelated litigation but that any c-mails that precede June,
2008 have been lost. My paralegal will search the tape using the search tenns you have provided.
This retrieval/search will take three weeks to accomplish. I will provide you with any recovered
c-mails not subject to a privile~e.

1 Contrary to your ass~rticnr Sg~, ~helan waS not mistaken in his belief that
.... )AC:Pl) ..,. :.6L·eks a polil::Y on trlc c.:~t:'-'~.!L'Jt:
i.()rl ()f (·.~-rLlrJ.il. In fact, Lhl~t.C~~ i,s ,"to F)olicy
unique to the De~artment. As you noted, ~t ~8 a County-wide policy that was
provi.d,cd t:o :ic,'..J !:In(\ 'lihlCh is ·3pplic.:lb:"l to t\H:\ Po::',ice D'~p.:trt·.nH~nl .. r.-llr.l:h~r/
Sgt. PheL.:tn ·;>Ias not, dl~pc5ed as a Rul"~ ?-41?(d) c~Jrporate ("J,;~:-;.i9n~~~ t~) i;lnSW~t:
general q~estions ~b0~~ ~Q~nty or County ~o.L~e palicicD.
 Page 2

B. Addition.al Searches for Records

I have directed Sgt- Phelan to inquire of each officer assigned to the operation, including
Detective Mendoza~ to search for notes, documents, and their computers (including portable
media) and provide the results to him. Lt. Hodge and Chief Teare have also been given this
request. The results will be forwarded to you.

There is no recoverable search Jog for the Tiburon system. We have retrieved the relevant
teletype logs for June 30,2008. There are two sets of documents because there were two
operators handling calls from the same channel. These will be provided to you. However, ont of a
concern for the release of criminal history record information, which is prohibited by law (see
COMAR 12.15.01.10 and Criminal Procedure Art. §10-201 et seq.), matters unrelated to the ICE
operation will be redacted. Out of the same concerns, the teletype channel recording cannot be
.released in its entirety. To redact unrelated matters from the teletype tape and isol.ate only those
relevant to your request would require the expenditure of at least 20 man~hours. As a practical
matter, the substantive equivalent is contained in the 'Written teletype logs which we have agreed
to provide. Accordingly, I respectfully ask that you withdraw your request for this tape (it would
be unintelligible to an untrained ear in any event).

The individual officers who participated in the operation were not patrol officers rather,
they were from variQus specialized units. Accordingl.Yl there are no ::patrol rosters" responsive to
your request. All operation participants' payroll time sheets as maintained on the Department's
Enterpri5c E-Time system will be forwarded to you as requested. These records reflcct time
submitted for regular and/or overtime pay.

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

Finally, simply because the County is in receipt of investigative documents and

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

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!?ecy.·'~d Paper
 Pa.ge 3

C. Documents Withheld

The narratives contained in the Request for Transfer of Seized Property ("OAG" ron:n.s)
were redacted pursuant to § 10-618(t) as stated in Lt. Hodge's letter to you dated October 28,
2008. These narratives contain investigative informatiOn regarding the June 30, 2008 ICE
operation. ICE's "Enfon;;ement Operations Plan" was denied on the same basis. Again~ I disagree
with your position that simply because the County is in receipt of investigative documents and
information prepared by ICE that it is obligated to disclose them. If the information sought would
not be available through the agency that created it (in this case, ICE via Federal Freedom of
Information Act), the NlPIA cannot independently authorize release. See § 10-615(2) and 89
Opinions ofthe Attorney General]l, 44 (2004). However, I understand that the need to continue
withholding this infonnation may no longer exist. I am presently trying to confinn this with ICE
Of, alternatively, obtain a sworn statement from them attesting to the need to continue
withholding it. If such i!l not forthcoming shortly, these documents will be provided to you in
complete, un-redacted form. Finally, I will provide you with a copy of the County's "Operation
Touch-Upll document with the names of the ICE agents disclosed.

D. Office of County Executive

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

All information that r. have agreed to provide to you will be forthcoming shortly with the
exception of the ewmaU search results, which will be disclosed when the search is completed.
After you have had a chance to digest these additional materials, kindly contact me so that we
can discuss a resolution of Casa de Marylandls claim.

Sincerely~

tJj),J 1~ -"
Andrew j. ~ay ~~
Supervising County Atto4J

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H~cycr~" P(lP(!r