Since 2014, San Jose has been claiming that a non-disclosure agreement with the Federal Bureau of Investigation (FBI) pertaining to its purchase of a cell-site simulator from Harris Corporation is completely exempt from disclosure. After more than seven years, the San Jose Police Department released a heavily-redacted copy of the non-disclosure agreement it signed with the FBI on April 4, 2013.
Despite former San Jose Police Chief Garcia’s claim that “We pride ourselves in being transparent,” the City of San Jose’s response to requests for this document have mirrored the failures to disclose records for which San Jose Mayor Sam Liccardo’s office has become known. In previous responses to public records requests for this non-disclosure agreement, the San Jose Police stated:
The Department is unable to release this record. This record is being withheld on the following asserted bases:
From letters to Mike Katz-Lacabe, dated September 12, 2014 and September 30, 2019
California Government Code § 6254(k) exempts the disclosure of records when disclosure is exempted or prohibited pursuant to federal or state law. Section 892 of the Homeland Security Act contains a provision which may preempt state access laws in instances where federal homeland security information is shared with state and local governments. See 6 U.S.C. § 482(e). Homeland security information is defined to include information that relates to the threat of terrorist activity. See 6 U.S.C. § 482(f)(1). The same technology employed in criminal cases is also used in counterterrorism and counterintelligence investigations, and thus release of this information could have a significant detrimental impact on the national security of the United States. Similarly, the record is loaned Federal government property pursuant to 28 U.S.C. Section 534. Section 534 appears to preempt disclosure of the record under local access laws. See 28 U.S.C. Section 534(a) and (b).”
The refusal to release the non-disclosure agreement was appealed to San Jose’s Rules and Open Government Committee on December 3, 2014. During the meeting, staff stated, “This is an agreement which involves the FBI, Harris and the City [of San Jose]. There is a non-disclosure agreement. We typically don’t agree to non-disclosure agreements.”
We knew that this non-disclosure agreement existed because that signed document was required before San Jose could buy a cell-site simulator from Harris Corporation, which was purchased for $432,006.59, according to invoice INV6779-02308, dated June 27, 2013. The purchase was funded with a grant from the Urban Areas Security Initiative as part of the “South Bay Surveillance Technology Project.”
We also knew that this non-disclosure agreement existed because the San Jose Police Department released a June 12, 2013, letter from the FBI to Harris Corporation, which states, “The Federal Bureau of Investigation (FBI) has an approved non-disclosure agreement (NDA) in place with the captioned law enforcement agency. [San Jose Police Department]”
Numerous non-disclosure agreements between the FBI and law enforcement agencies have been released and are collected here. If the San Jose Police Department had been correct in its reasoning for not releasing the NDA, then many law enforcement agencies appear to have violated 6 U.S.C. § 482(e), 6 U.S.C. § 482(f)(1), and 28 U.S.C. Section 534(a) and (b). Of course, there is no evidence of any case being brought against those who have released these NDAs between the FBI and law enforcement agencies.