1

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 )

POLICE,

1

)

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.
2

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).
3

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).
4

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 
5

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,”9the DSP contacted the FBI to 

 

7 Appellant‟s Opening Br. Ex. A at 1-2.

8 R. at 4.

9 R. at 14.
6

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.
7

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.
8

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.
9

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.
10

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.
11

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.
12

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.
13

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).
14

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).
15

“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 nondisclosure 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.
16

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).
17

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

9(b).”

53

 

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). 
18

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.
19

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.

.
20

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.
21

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).
22

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