ACLU
AMERICAN CIVIL LIBERTIES UNION

I

May6,2015

Record/Information Dissemination Section
Federal Bureau of Investigation
Department of Justice
170 Marcel Drive
Winchester, VA 22602-4843
Fax:(540)868-4995
Office of General Counsel
United States Marshals Service
Department of Justice
Washington, D.C. 20530-1000
Fax: (202) 307-8544
AMERICAN CIVIL LIIERTIES
UNION FOUNDATION
NAfiONAL I) ICE_
11., BROAD -.l~E. T 18TH fl
NEW YORK. NY I J 'l.:, 14 I
T/l1l '49 roo
WWW ACLU ORG

Freedom of Information Operations Unit (SARO)
Drug Enforcement Administration
Department of Justice
700 Army Navy Drive
Arlington, VA 22202
Fax: (202) 307-7596
FOIA!PA Mail Referral Unit
Department of Justice- - - - - - - Room 115
LOC But!dmg
Washington, DC 20530-0001
Fax: (301) 341-0772
Re:

Freedom of Information Act Request I
Surveillance Flights over Baltimore, Maryland
EXPEDITED PROCESSING REQUESTED

To Whom It May Concern:
This letter is a request under the Freedom of Information Act by the
American Civil Liberties Union ("ACLU"). This request seeks records
regarding recent surveillance or monitoring flights over the Baltimore area.
In the aftermath of the death of Freddie Gray in police custody last
month and the public's reaction, the ACLU of Maryland has monitored
interactions between law enforcement agencies and the public and has
expressed serious concern about treatment of protesters and other
community members in the city. As part of the ACLU's effort to ensure that
I

 law enforcement has not inappropriately surveilled and targeted members of
the public, we seek information about several airplanes that recently flew
paths above Baltimore that were indicative of surveillance activity.
On at least several recent evenings, light aircraft have flown patterns
over Baltimore that suggest they are engaged in surveillance or monitoring
activities. On the evening of May 2, 2015, for example, a Cessna 182T
Skylane, Registration Number N539MY, made repeated passes over West
Baltimore, ending at approximately 10:00 PM. Starting at or near the time
that plane departed the Baltimore area, a Cessna 560 Citation V, registration
number unknown, was observed flying circles over West Baltimore for
approximately two hours. We seek information about the purpose and
conduct of such flights.
Records Requested
AMERICAN CIVIl. l.18£RTIES

UNION FOVHOATION

Please provide copies of the following records created since or in
effect from January 1, 2015 to the present:
1. All records regarding surveillance or monitoring flights over the
greater Baltimore area from Aprill9, 2015, to the present, that were
conducted, contracted, or requested by any local, state, or federal
agency;
2. All records regarding policies, practices, and procedures for
conducting or contracting surveillance or monitoring flights and for
storing, accessing, analyzing, sharing, and otherwise interacting with
records collected during such flights (including photographs, videos,
and electronic surveillance records), including but not limited to
documents that describe:
a. the legal justification and factual showing required before a
surveillance flight is authorized;
b. the purposes for which collected data may or may not be
access~; an~d~-:--

c. who may access the collected data, what procedures they
must go through to access the data, and who may authorize
access;
3. All contracts, agreements, and communications with NG Research,
Persistent Surveillance Systems, and other private companies to
conduct surveillance or monitoring flights over the greater Baltimore
area, to operate surveillance or monitoring equipment installed on
aircraft conducting such flights, or to store, analyze, or transmit data
or information collected during such flights;
4. All records regarding the Cessna modell82T aircra.ft with
Registration NumberN539MY, registered toNG Research, PO Box
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 722, Bristow, VA, 20136;
5. All records regarding a Cessna 560 Citation V aircraft, registration
number unknown, that flew multiple passes over Baltimore on May
2 through May 3, 2015, and possibly other dates;
6. All records listing, logging, or describing surveillance or monitoring
flights over the greater Baltimore area from April 1, 2015, to the
present;
7. All records regarding surveillance or monitoring equipment carried
on such flights, including its capabilities and description of the data
gathered by it; and

AM[AICAN CIVIl lt9£ATIES
UNION FOUNOAHON

8. All records regarding any proposal, approval, or authorization to
conduct or engage others to conduct surveillance or monitoring
flights over the greater Baltimore area.
Application for Expedited Processing
We request expedited processing pursuant to 5 U.S.C.
§ 552(a)(6)(E). There is a "compelling need" for these records, as defined
in the statute and regulations, because the information requested is urgently
needed by an organization primarily engaged in disseminating information
in order to inform the public about actual or alleged government activity. 5
U.S.C. § 552(a)(6)(E)(v).
I.

The ACLU is an organization primarily engaged in
disseminating information in order to inform the public about
actual or alleged government activity.

The ACLU is "primarily engaged in disseminating information"
within the meaning of the statute and regulations. 5 U.S.C.
§ 552(a)(6)(E)(v){II). See ACLU v. Dep 't ofJustice, 321 F. Supp~-2d 24, 30

n.5 (D.D.C. 2004) (finding that a non-profit, public-interest group that
"gathers information of potential interest to a segment of the public, uses its
editorial skills to turn the raw material into a distinct work, and distributes
that work to an audience" is ''primarily engaged in disseminating
information" (internal citation omitted)); see also Leadership Conference on
Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005) (finding
Leadership Conference--whose mission is "to serve as the site of record for
relevant and up-to-the-minute civil rights news and information" and to
"disseminate(] information regarding civil rights and voting rights to
educate the public {and] promote effective civil rights laws"-to be
''primarily engaged in the dissemination of information'').
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 Dissemination of information about actual or alleged govermnent
activity is a critical and substantial component of the ACLU's mission and
work. The ACLU disseminates this information to educate the public and
promote the protection of civil liberties. The ACLU's regular means of
disseminating and editorializing information obtained through FO IA
requests include: a paper newsletter distributed to approximately 390,000
households; email updates to 1.1 million subscribers; published reports,
books, pamphlets, and fact sheets; a widely read blog that attracts more than
40,000 unique visitors per month; heavily visited websites1; and a video
series.
The ACLU also regularly issues press releases to call attention to
documents obtained through FOIA requests, as well as other breaking
news.2 ACLU attorneys are interviewed frequently for news stories about
documents released through ACLU FOIA requests.
AMERICAN CIVIl lfBERTIES

UNION FOUNOATION

The ACLU website specifically includes features on information
about actual or alleged govermnent activity obtained through FOIA. For
example, the ACLU maintains an online "Torture Database," a compilation
of over I 00,000 FOIA documents that a11ows researchers and the public to
1

See www.aclu.org.
See, e.g., Press Release, American Civil Liberties Union, Erie County
Sheriff Records Reveal Invasive Use of"Stingray" Technology, Apr. 7,
2015, https://www.aclu.orgfnewslerie-county-sheriff-records-revealinvasive-use-stingray-technology; Press Release, American Civil Liberties
Union, U.S. to Release Targeted Killing Memo Sought by ACLU FOIA
Lawsuit, May 20,2014, https:l/www.aclu.orgfnewslus-release-targetedkilling-memo-sought-aclu-foia-lawsuit; Release, American Civil Liberties
Union, Documents Show FBI Monitored Bay Area Occupy Movement,
Sept. 14, 2012, http://www.aclu.orgfnode/36742; Press Release, American
Civil Liberties Union, FOIA Documents Show FBI Using "Mosque
Outreach" for Intelligence Gathering, Mar. 27, 2012,
http://www.aclu.orgfnational-security/foia-documents-show-fbi-usingmosque-outreach-intelligence-gathering; Press Release, American Civil
Liberties Union, FOIA Documents Show FBI illegally Collecting
Intelligence Under Guise of "Community Outreach,'' Dec. I, 20 II,
http://www.aclu.orgfnational-security/foia-documents-sbow-fbi-illegallycollecting-intelligence-under-guise-community; Press Release, American
Civil Liberties Union, FOIA Documents from FBI Show Unconstitutional
Racial Profiling, Oct. 20, 2011, http://www.aclu.orgfnational-security/foiadocuments-fbi-show-unconstitutional-racial-profiling; Press Release,
American Civil Liberties Union, Documents Obtained by ACLU Show
Sexual Abuse of Immigration Detainees is Widespread National Problem,
Oct. 19, 2011, http://www.aclu.orgfirnmigrants-rights-prisoners-rightsprisoners-rights/documents-obtained-aclu-sbow-sexual-abuse.
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 AMERICAN CIVIl LIBERTIES
UNION FOUNOA.TION

conduct sophisticated searches ofFOIA documents relating to government
policies on rendition, detention, and interrogation. The ACLU also
maintains a "Torture FOIA" webpage containing commentary about the
ACLU's FOIA request, press releases, and analysis of the FOIA documents.
(That webpage also notes that the ACLU, in collaboration with Columbia
University Press, has published a book about the documents obtained
through FOIA. See Jameel Jaffer & Amrit Singh, Administration of
Torture: A Documentary Record from Washington to Abu Ghraib and
Beyond (Columbia Univ. Press 2007)). Similarly, the ACLU's webpage
about the Office of Legal Counsel ("OLC'') torture memos obtained through
FOIA contains commentary and analysis of the memos; an original,
comprehensive chart summarizing the memos; links to web features created
by ProPublica (an independent, non-profit, investigative-journalism
organization) based on the ACLU's information gathering, research, and
analysis; and ACLU videos about the memos. In addition to websites, the
ACLU has produced an in-depth television series on civil liberties, which
has included analysis and explanation of information the ACLU has
obtained through FOIA.
The ACLU plans to analyze and disseminate to the public the
information gathered through this Request The record requested is not
sought for commercial use, and the Requeste.rs plan to disseminate the
information disclosed as a result of this Request to the public at no cost.
2.

The record sought is urgently needed to inform the public
about actual or alleged government activity.

These records are urgently needed to inform the public about actual
or alleged government activity; moreover, this document relates to a
breaking news story of general public interest.
There has been intense and sustained news coverage of
developments in Baltimore since the killing of Freddie Gray in police
custody on April19, 2015. We make this Request to further the public's
understanding of one aspect of law enforcement's response to the public's
reaction to Gray's death. National news stories have extensively covered
this topic, and continue to do so. See, e.g., Craig Timberg, Surveillance
Planes Spotted in the Sky for Days after West Baltimore Rioting, Wash.
Post, May 5, 2015,
http://www.washingtonpost.com/business/technology/surveillance-planesspotted-in-the-sky-for-days-after-west-baltimorerioting/2015/05/05/c57c53b6-f352-ll e4-84a6-6d7c67c50db0_story.html;
Ben Nuckols & David Dishneau, Baltimore Mayor Lifts Curfew 6 Days
After Riots, Wash. Post, May 3, 2015,
http://www.washingtonpost..com/nationallbaltimore-mayor-lifts-curfew-6days-after-riots/2015/05/03/e66036e4-f201-ll e4-bca55

 AMERICAN CIVIl t,.18£RTIES
UNION FOUNDATION

21 b51 bbdf93e_story.html; Erin Cox & John Fritze, Unrest after Freddie
Gray's Death Puts Spotlight on Hogan. Rawlings-Blake, Baltimore Sun,
May 2, 2015, http://www.baltimoresun.com/news/maryland/politicslbs-md- hogan-mwlingsblake-politics-20150502-story.html#page=1; Sheryl Gay
Stolberg. After Thousands Rally in Baltimore, Police Make Some A"ests as
Curfew Takes Hold, N.Y. Times, May 2, 2015,
http://www.nytimes.com/2015/05/03/uslbaltimore-braces-for-moreprotests.html; Amanda Lee Myers & David Dishneau, Baltimore on Edge:
National Guardsmen Take Up Positions, Wash. Post, Apr. 28,2015,
http://www.washingtonpost.com/locallriot-looting-prompt-state-ofemergency-curfew-in-baltimore/2015/04127/e3e19e14-ed3b-11 e4-8050839e9234b303_story.html; Erin Cox, Justin Fenton, & Luke Broadwater,
Critics Question Delay in Calling Out the Guard, Baltimore Sun, Apr. 28,
2015, http://www.baltimoresun.com/news/maryland/politicslbs-md-statecity-response-20150428-story.html#page=l; Sheryl Gay Stolberg, Baltimore
Enlists National Guard and a Curfew to Fight Riots and Looting, N.Y.
Times, Apr. 27, 2015, http://www.nytimes.com/2015/04/28/uslbaltimorefreddie-gray.html
National news outlets and the public maintain great interest in
learning about how law enforcement has interacted with and monitored the
public in Baltimore in recent weeks. The news story is still developing.
Limitation of Processing Fees
The ACLU requests a limitation of processing fees pursuant to 5
U.S.C. § 552(a)(4)(A)(ii)(II) ("[F]ees shall be limited to reasonable standard
charges for document duplication when records are not sought for
commercial use and the request is made by ... a representative of the news
media ... .'') and 28 C.F.R. §§ 16.ll(c)(l)(i), 16.11(c)(3), 16.11(d)(1)
(search and review fees shall not be charged to representatives of"the news
media"). As a representative of the news media, the ACLU fits within this
statutory and regulatory mandate. Fees associated with the processing of this
request should, therefore, be limited accordingly.
The ACLU meets the definition of a representative of the news
media because it is an "entity that gathers information of potential interest to
a segment of the public, uses its editorial skills to tum the raw materials into
a distinct work, and distributes that work to an audience.'' Nat 'l Sec. Archive
v. US. Dep't ofDef, 880 F.2d 1381, 1387 (D.C. Cir. 1989).
Dissemination of information to the public is a critical and
substantial component of the ACLU's mission and work. Specifically, the
ACLU publishes newsletters, news briefings, right-to-know documents, and
other educational and informational materials that are broadly disseminated
to the public. Such material is widely available to everyone, including
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 AN(RICAN CIY1L LIIU'I(\
UN ON ,OtiNDAHON

individuals, tax-exempt organizations, not-for-profit groups, law students,
and faculty, for no cost or for a nominal fee through its communications
department and web site. The web site addresses civil rights and civil
liberties issues in depth, provides features on civil rights and civil liberties
issues in the news, and contains many thousands of documents relating to
the issues on which the ACLU is focused. The website's blog attracts more
than 40,000 unique visitors per month. The website specifically includes
features on information obtained through the FOIA. For example, the
ACLU's "Accountability for Torture FOIA" webpage,
http://www.aclu.oJ'&'torturefoia, contains commentary about the ACLU's
FOIA request for documents related to the treatment of detainees, press
releases, analysis of the FOIA documents disclosed, and an advanced search
engine permitting webpage visitors to search the documents obtained
through the FOIA. See Judicial Watch, Inc. v. U.S. Dep 't ofJustice, 133 F.
Supp. 2d 52, 53-54 (D.D.C. 2000) (finding Judicial Watch to be a newsmedia requester because it posted documents obtained through FOIA on its
website).
The ACLU publishes a newsletter at least twice a year that reports
on and analyzes civil-liberties-related current events. The newsletter is
distributed to approximately 390,000 households. The ACLU also sends
email updates to 1.1 million. Both of these newsletters often include
descriptions and analyses of information obtained from the government
through FOIA, as well as information about cases, governmental policies,
pending legislation, abuses of constitutional rights, and polling data. Cf
Elec. Privacy Info. Ctr. v. Dep't ofDef, 241 F. Supp. 2d 5, 13-14 (D.O.C.
2003} (finding the Electronic Privacy Information Center to be a
representative of the news media under Department of Defense regulations
because it published a "bi-weekly electronic newsletter that is distributed to
over 15,000 readers" about "court cases and legal challenges, government
policies, legislation, civil rights, surveys and polls, legislation, privacy
abuses, international issues, and trends and technological advancements'1.
The ACLU also regularly publishes books,3 "know your rights"
publications: fact shcets,5 and educational brochures and pamphlets
3

Some of the recent books published by the ACLU include: Susan N. Herman,
Talting Liberties: The War on Terror and the Erosion ofAmerican Democracy
(Oxford Univ. Press 2011); Lenora M. Lapidus, Emily J. Martin & Namita Luthra,
The IUghts of Women The AuthoriUlth>e ACLU Guide to Women s Rights (NY1J
Press 4th ed. 2009); Jameel Jaffer & Amrit Singh, Administration ofTorture: A
Documentary Recordfrom Washington to Abu Ghraib and Beyond (Columbia
Univ. Press 2007) (a book based on documents obtained through FOIA).
• Some of the more recent "know your rights" publications include: ACLU, Know
Your Rights: Demonstrations and Protests (Nov. 2011), available at
http://www .aclu.org/fileslassets/lcyr_protests.pdf; ACLU, Gender-Based Violence
& Harassment: Your School, Your Rights (May 2011), available at

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 designed to educate the public about civii liberties issues and governmental
policies that implicate civil rights and liberties. These materials are
specifically designed to be educational and widely disseminated to the
public. See Elec. Privacy Info. Ctr., 241 F. Supp. 2d at II (finding the
Electronic Privacy Information Center to be a news-media requester because
of its publication and distribution of seven books on privacy, technology,
and civil liberties).
Depending on the results of this request, the ACLU plans to
"disseminate the information" it receives "among the public" through these
kinds of publications in these kinds of channels. The ACLU is therefore a
news media entity.

AMERICAN CIVIL liBERTIES
UNION FOUNOATION

Disclosure is not in the ACLU's commercial interest. The ACLU is a
"non-profit, non-partisan, public interest organization." See Judicial Watch
Inc. v. Rossetti, 326 FJd 1309, 1312 (D.C. Cir. 2003) (citation and internal
quotations omitted) ("Congress amended FOIA to ensure that it be 'liberally
construed in favor of waivers for noncommercial requesters."'). Any
information disclosed by the ACLU as a result of this FOIA \vill be
available to the public at no cost.
Waiver of All Costs
The ACLU additionally requests a waiver of all costs pursuant to 5
U.S.C. § 552(a)(4)(A)(iii) ("Documents shall be furnished without any
charge ... if disclosure of the information is in the public interest because it
is likely to contribute significantly to public understanding of the operations
or activities of the government and is not primarily in the commercial
interest of the requester.").
The requested information ·will "contribute significantly to public
understanding." /d. Disclosure of the requested information will help the
American public better understand whether and how the government
monitored protesters and other members of the public in a major American
http://www.aclu.orglfileslassets/genderbasedviolence_factsheet_O.pdf; ACLU,
Know Your Rights: What to Do JfYou're Stopped by Police, Immigration Agents or
tire FBI (June 2010), available at
http://www.aclu.org/filesfassetsfbustcard_eng_201 00630.pdf.
s See, e.g., ACLU, Military Abortion Ban in Cases ofRape and Incest (Factsheet)
(2011 ), available at httpJ/www .aclu.orglreproductive-freedom/military-abortionban-cases-rape-and-incest-factsheet; ACLU, Tire Facts About "The No Taxpayer
Funding For Abortion Act" (2011), available at
http://www.aclu.org/filesfassets/Chris_Smith_bill-_ACLU_Fact_Sheet- UPDATED-4-30-ll.pdf; ACLU, Fact Sheet on H.R. 3, the No Taxpayer Funding
for Abortion Act (2011), available at httpJ/www.aclu.org/reproductivefreedom/fact-sheet-hr-3-no-taxpayer-funding-abortion-act.

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 city. The public has already demonstrated a strong interest in learning more
about this topic, as is apparent by sustained press coverage devoted to this
issue. See supra.
As a nonprofit 50 I(c)(3) organization and "representative of the
news media" as discussed in Section ill, the ACLU is well-situated to
disseminate information it gains from this request to the general public and
to groups that protect constitutional rights. Because the ACLU meets the
test for a fee waiver, fees associated with responding to FOIA requests are
regularly waived for the ACLU. 6
Pursuant to applicable statute and regulations, we expect a
determination regarding expedited processing within ten (10) calendar days.
See 5 U.S.C. § 552(a)(6)(E)(ii)(l).
AM£ RICA~ CIVIL L18ERfiES
UNION FOUNDATION

If the request is denied in whole or in part, we ask that you justify all
withholdings by reference to specific exemptions to the FOIA. We also ask
that you release all segregable portions of otherwise exempt material.
We reserve the right to appeal a decision to withhold any
information or to deny expedited processing or a waiver of fees.
Thank you for your prompt attention to this matter. Please furnish all
applicable records to:

6

For example, in June 2011, the National Security Division of the Department of
Justice granted a fee waiver to the ACLU with respect to a request for documents
relating to the interpretation and implementation of a section of the PATRIOT Act.
In October 2010, the Department of the Navy granted a fee waiver to the ACLU
with respect to a request for documents regarding the deaths of detainees in U.S.
custody. In January 2009, the CIA granted a fee waiver with respect to the same
request. In March 2009, the State Department granted a fee waiver to the ACLU
with regard to a FOIA request submitted in December 2008. The Department of
Justice granted a fee waiver to the ACLU with regard to the same FOIA request. In
November 2006, the Department of Health and Human Services granted a fee
waiver to the ACLU with regard to a FOIA request submitted in November of
2006.

9

 Nathan Freed Wessler
Staff Attorney
American Civil Liberties Union Foundation
125 Broad Street, 18m floor
New York, NY 10004

c:-:1
·cp~.s,...-

Sincerely,

7?7

Nathan Freed Wessler
Staff Attorney
American Civil Liberties Union

AM£AICA~ CIVIL liBERTI£S
UNION FOUN0Afi0N

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