Case 2:10-cv-01061-SRB Document 715-6 Filed 07/17/12 Page 1 of 144 1 Daniel J. Pochoda (SBA 021979) ACLU Foundation of Arizona 2 3707 North 7th Street, Suite 235 3 Phoenix, AZ 85014 Telephone:(602) 650-1854 4 Facsimile: (602) 650-1376 [email protected] 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 VALLE DEL SOL, et al., NO. CV-10-01061-PHX-SRB 9 Plaintiffs, Related Cases: 10 v. CV-10-926-PHX-SRB 11 CV-10-249-TUC-SRB MICHAEL B. WHITING, et al., CV-10-943-PHX-SRB 12 CV-10-951-PHX-SRB Defendants. CV 10-1413-PHX-SRB 13 DECLARATION OF 14 DANIEL POCHODA 15 Hon. Susan R. Bolton 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:10-cv-01061-SRB Document 715-6 Filed 07/17/12 Page 2 of 144 1 I, Daniel Pochoda, am over the age of eighteen and competent to and if 2 called would testify to the following: 3 1. I am a lawyer with the American Civil Liberties Union of Arizona and 4 counsel for Plaintiffs in this matter. 5 2. On July 26, 2011, my office served a public records request pursuant to 6 A.R.S. § 39-121, et seq, on the Office of the President, Arizona State Senate. A true and 7 correct copy of the request is attached hereto as Exhibit E-1. 8 3. On September 7, 2011, my office served a follow-up letter requesting a 9 response. A true and correct copy of the letter is attached hereto as Exhibit E-2. 10 4. On September 13, 2011, I received an email response from Greg Jernigan, 11 following up on a phone call from Mr. Jernigan, asking us to propose limitations to our 12 request. A true and correct copy of Mr. Jernigan’s email is attached hereto as Exhibit E- 13 3. 14 5. On September 21, 2011, I responded with a proposal that responsive 15 documents be made available for inspection and review in thirty days, and that we would 16 determine what copies we wanted upon review. A true and correct copy of my email is 17 attached hereto as Exhibit E-4. 18 6. On October 28 and 31, 2011, I and a volunteer attorney from my office 19 went to the State Senate, reviewed the records made available in response to our request, 20 and marked approximately 3,000 pages for copying. 21 7. The American Civil Liberties Union of Arizona paid for and received the 22 records we marked for copying. 23 8. All of the emails attached as Exhibits E-5 through E-37 are true and correct 24 copies of records we received in response to our public records request, with one 25 exception: a header noting the exhibit number has been added to each email or email 26 chain. 27 28 - 4 - Case 2:10-cv-01061-SRB Document 715-6 Filed 07/17/12 Page 3 of 144 1 DATED this 17th day of July, 2012. 2 3 By /s/ Daniel Pochoda Daniel Pochoda 4 ACLU Foundation of Arizona 3707 North 7th Street, Ste. 235 5 Phoenix, AZ 85014 6 Attorney for Plaintiffs 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 - ALE55ANDHA SOLCERa MsEeET Z2E: 10-cv-01061-SRB Document 715-6 Filed 07/17/12 Page 4 of 144 EXECUTIVE DIRECTOR HOBERTO REVELES PRESIDENT Exhibit E-1 VIA E-MAIL AND CERTIFIED MAIL July 26, 2011 Office of the President Arizona State Senate Capitol Complex 1700 West Washington Street AMERICAN CIVIL Phoenix, AZ 85007-2890 LIBERTIES UNION FOUNDATION OF ARIZONA Re: Request/or Public Records P.O. BOX 1711,B PHOENIX, AZ 85011 P/602,650.1854 Dear Senate President Russell Pearce: F/602.650.1376 WWW.ACLUAZ.ORG Our office, along with co-counsel the ACLU Immigrants' Rights Project, the National Immigration Law Center, the Mexican American Legal Defense and Education Fund, Asian Pacific American Legal Center, National Day Labor Organizing Network, National Association for the Advancement of Colored People, Roush McCracken Guerrero Miller & Oltega, and Munger, Tolles & Olson LLP, represents Plaintiffs in a lawsuit challenging the constitutionality of Arizona's Senate Bill 1070. Pursuant to Arizona's Public Records Law, A.R.S. § 39-121 et seq., the ACLU of Arizona ("ACLU-AZ") hereby requests the right to examine and copy, or to be furnished with copies of, certain public records in your possession and the possession of the Arizona State Senate ("the Senate"). The ACLU-AZ is a non-profit civil rights organization, and these records are not sought for any commercial purpose. A.R.S. § 39-121.01(D)(1); cf Havania v. City a/Tucson, 128 Ariz. 135, 136 P.2d 332, 333 (Ariz. Ct. App. 1980) (agency may not charge non commercial requestors for costs associated with searching for records); cf A.R.S. § 39- 121.03(D) ("Commercial purpose does not mean the use of a public record as evidence or as research for evidence in an action in any judicial or quasi-judicial body.") Nevertheless, we agree to reimburse you for reasonable costs associated with copying and postage for the requested information. If that amount will exceed $50, please inform me of the amount requested for reimbursement be/ore you illcur the costs. We would appreciate CD or DVD copies of any electronic infOlmation. We also reserve the right to designate some or all of the records for copying after onsite inspection. If your agency does not maintain the records requested, please advise us of the proper custodian's name and address. We seek all records (in written, electronic, audio, video, CD-ROM or other format) Case 2:10-cv-01061-SRB Document 715-6 Filed 07/17/12 Page 5 of 144 Exhibit E-1 pellaining to the following. This includes any written records in your possession or in the possession of the Senate in the form of electronic mail. I Request No.1: All correspondence, including e-mails, between you and other elected officials, legislative personnel, law enforcement, or members of the public since January 1, 2006, and all papers and notes in your possession relating to or describing the following. We seek the initial correspondence as well as any response, follow-up, or notation to the cotl'espondence, whether or not it ultimately became the subject of a bill or proposed legislation: (a) The negative consequences or perceived negative consequences of immigration, including illegal immigration, from Mexico and/or Latin America to the U.S.; (b) The number of undocumented immigrants residing in Arizona or the rate of illegal immigration to Arizona; AMERICAN CIVIL (c) The relationship between immigration, including illegal immigration, and LIBERTIES UNION FOUNDATION OF ARIZONA criminal activity in Arizona, including but not limited to human smuggling and/or drug-related criminal activity; (d) The relationship between day laborers and illegal immigration, unauthorized employment, public safety, or traffic concerns; (e ) The relationship between immigration, including illegal immigration, to the U.S. or Arizona and any economic concems, including but not limited to decreased employment oppollunities for U.S. citizens and depressed wages or working conditions; (f) The relationship between immigration, including illegal immigration, and any public health concems; (g) The relationship between immigration fl:om Mexico and/or Latin America and its impact on American culture or way of life, or any discussion of the lack of assimilation of any group of immigrants into American culture, including language assimilation; (h) Any correspondence, including e-mails or notes, which contain the terms "profiling," "wetback," "Mexican," "Hispanic," "Latino" or "1070"; (i) Any discussion of how law enforcement can determine if a person is unlawfully present or has committed a public offense that would make the person removable from the U.S.; and G) Any discussion of whether Arizona law enforcement officers may consider the race, ethnicity, color, or descent of a person as a factor in whether or not he or she is unlawfully present in the U.S. Request No.2: All correspondence, including e-mails, between you and other elected officials, legislative personnel, law enforcement, or members of the public since January 1, 2006, and any papers and notes in your possession relating to or describing the following: 1 Griffis v. Pinal County, 215 Ariz. 1,5-6 (2007) (holding that e-mails generated or retained on a government computer are public records when they relate to government activities and that the party objecting to the e-mails' release "bears the burden of establishing that the e-mails are not public records.") Case 2:10-cv-01061-SRB Document 715-6 Filed 07/17/12 Page 6 of 144 Exhibit E-1 (a) Ways in which SB 1070 or other proposals to increase local law enforcement powers would address the issues enumerated in sections (a) tlu'ough G) under RequestNo. 1; and (b) Suggestions or recommended courses of action in response to the issues enumerated in sections (a) through G) under Request No.1. Request No.3: All correspondence between you and Kris Kobach relating to the need for SB 1070 or other laws that increase local law enforcement powers to address immigration issues, or the drafting or language of SB 1070 and all related predecessor and subsequent bills since January 1,2006, including but not limited to the following bills: (a) Introduced in the Forty-ninth Legislature's 2010 Second Regular Session: HB 2162 (b) Introduced in the Forty-ninth Legislature's 2009 First Regular Session: AMERICAN CIVil 1) SB 1159 LIBERTIES UNION FOUNDATION OF ARIZONA 2) SB 1175 3) SB 1280 (c) Introduced in the Forty-eighth Legislature's 2008 Second Regular Session: 4) SB 1408 5) SB 1459 (d) Introduced in the Forty-eighth Legislature's 2007 First Regular Session: 6) SB 1265 7) SB 1422 (e) Introduced in the Forty-seventh Legislature's 2006 Second Regular Session: SB 1157 Please comply with this request on or before August 13,2011. See A.R.S. § 39- 121.01 (D)(1) and (E) (stating that public records must be provided "promptly"). Arizona public records law carries with it a presumption that all records are "open to the public for inspection as public records." Carlson v. Pima County, 141 Ariz. 487, 490, 687 P.2d 1242 (1984). If this request is denied in whole or in part, please state the specific grounds for denial under the Public Records Law and provide us with the name and address of the person to whom an appeal may be directed. All severable portions of otherwise exempt material must be made available. FU11hermore, we reserve the right to appeal your decision to withhold any information. Thank you in advance for your cooperation. Please contact me at (602)773-6003 or [email protected] if you have any questions or concerns. ~!ZM- DanPochoda Legal Director, ACLU of Arizona Case 2:10-cv-010A61-CSRBL DUocum ent 715-6 Filed 07/17/12 Page 7 of 144 ALESSANDRA SOLER MEETZE EXECUTIVE DIRECTOR ROBERTO REVELES Exhibit E-2 PRESIDENT AMERICAN CIVIL LIBERTIES UNION of ARIZONA VIA EMAIL AND CERTIFIED MAIL September 7, 2011 Office of the President Arizona State Senate Capitol Complex 1700 West Washington Street Phoenix, AZ 85007-2890 AMERICAN CIVIL LIBERTIES UNION Re: Request/or Public Records re Arizona Senate Bill 1070 FOUNDATION OF ARIZONA P.O. BOX 17148 PHOENIX, AZ 85011 Dear Senate President Russell Pearce: P/602.650.1854 F/602.650.1376 WWW.ACLUAZ.ORG Our records request for documents related to Arizona Senate Bill 1070 was sent to you via certified U.S. mail and emailed to you on July 26, 2011; receipt was acknowledged. The Public Records law requires prompt action and we are looking to avoid fOlmal proceedings. Please let me know by the end of this week when we can expect a response. Thank you in advance for your cooperation. Please contact me at (602)773-6003 or [email protected] if you have any questions or concerns. Dan Pochoda Legal Director, ACLU of Arizona Enclosure: July 26,2011 Records Request Al.ESSANDRA SOl.ER MEHZE Case 2:10-cv-01061-SRB Document 715-6 Filed 07/17/12 Page 8 of 144 EXECUTIVE DIRECTOR ROBERTO REVELES PRESIDENT Exhibit E-2 VIA E-MAIL AND CERTIFIED MAIL July 26, 2011 Office of the President Arizona State Senate Capitol Complex 1700 West Washington Street AMERICAN CIVIL Phoenix, AZ 85007-2890 LIIlERTHlS UNION FOUNDATION OF ARIZONA P.O. BOX 1711,8 Re: Request for Public Records PHOENIX. AZ 85011 P/602.650.185t. F/602.650.1376 Deal' Senate President Russell Pearce: WWW.ACLUAZ.ORG Our office, along with co-counsel the ACLU Immigrants' Rights Project, the National Immigration Law Center, the Mexican American Legal Defense and Education Fund, Asian Pacific American Legal Center, National Day Labor Organizing Network, National Association for the Advancement of Colored People, Roush McCracken Guerrero Miller & Oltega, and Munger, Tolles & Olson LLP, represents Plaintiffs in a lawsuit challenging the constitutionality of Arizona's Senate Bill 10 70. Pursuant to Arizona's Public Records Law, A.R.S. § 39-121 et seq., the ACLU of Arizona ("ACLU-AZ") hereby requests the right to examine and copy, or to be flU'nished with copies of, certain public records in your possession and the possession of the Arizona State Senate ("the Senate"). The ACLU-AZ is a non-profit civil rights organization, and these records are not sought for any commercial purpose. A.R.S. § 39-121.01(0)(1); cf Havania v. City o/Tucson, 128 Ariz. 135, 136 P.2d 332,333 (Ariz. Ct. App. 1980) (agency may not charge non commerciall'equestors for costs associated with searching for records); cf. A.R.8. § 39- 121.03(0) ("Commercial purpose does not mean the use of a public record as evidence or as research for evidence in an action in any judicial quasi-judicial body.") 01' Neveltheless, we agree to reimburse you for reasonable costs associated with copying and postage for the requested information. If that amount will exceed $50, please inform me of the amount requested for reimbursement before you iltcllI' tlte costs. We would appreciate CO DVD copies of any electronic information. We also reserve the right to 01' designate some or all of the records for copying after onsite inspection. If your agency does not maintain the records requested, please advise us of the proper custodian's name and address. We seek all records (in written, electronic, audio, video, or other format) CD~ROM Case 2:10-cv-01061-SRB Document 715-6 Filed 07/17/12 Page 9 of 144 Exhibit E-2 pertaining to the following. This includes any written records in your possession or in the possession of the Senate in the form of electronic mail. 1 Request No.1: All correspondence, including e-mails, between you and other elected officials, legislative personnel, law enforcement, or members of the public since January 1, 2006, and all papers and notes in your possession relating to or describing the following. We seek the initial correspondence as well as any response, follow-up, or notation to the cOll'espondence, whether or not it ultimately became the subject of a bill or proposed legislation: (a) The negative consequences or perceived negative consequences of immigration, including illegal immigration, fl.·om Mexico and/or Latin America to the U.S.; (b) The number of undocumented immigrants residing in Arizona or the rate of illegal immigration to Arizona; AMERICAN CIVIL (c) The relationship between immigration, including illegal immigration, and LIBERTIES UNION FOUNDATION OF ARIZONA criminal activity in Arizona, including but not limited to human smuggling and/or drug-related criminal activity; (d) The relationship between day laborers and illegal immigration, unauthorized employment, public safety, or traffic concerns; (e) The relationship between immigration, including illegal immigration, to the U.S. or Arizona and any economic concerns, including but not limited to decreased employment oppoliunities for U.S. citizens and depressed wages or working conditions; (.f) The relationship between immigration, including illegal immigration, and any public health concerns; (g) The relationship between immigration from Mexico and/or Latin America and its impact on American culture or way of life, or any discussion of the lack of assimilation of any group of immigrants into American culture, including language assimilation; (h) Any correspondence, including e-mails or notes, which contain the tenus "profiling," "wetback," "Mexican," "Hispanic," "Latino" or "1070"; (i) Any discussion of how law enforcement can determine if a person is unlawfully present or has committed a public offense that would make the person removable from the U.S.; and G) Any discussion of whether Arizona law enforcement officers may consider the race, ethnicity, color, or descent of a person as a factor in whether not he or 01' she is unlawfully present in the U.S. Request No.2: All cOl1'espondence, including e-mails, between you and other elected officials, legislative personnel, law enforcement, or members of the public since January 1, 2006, and any papers and notes in your possession relating to or describing the following: 1 Gl'ijfls v. Pinal County, 215 Ariz. 1,5-6 (2007) (holding that e-mails generated or retained on a government computer are public records when they relate to government activities and that the party objecting to the e-mails' release "bears the burden of establishing that the e-mails are not public records.") Case 2:10-cv-01061-SRB Document 715-6 Filed 07/17/12 Page 10 of 144 Exhibit E-2 (a) Ways in which SB 1070 or other proposals to increase local law enforcement powers would address the issues enumerated in sections (a) through (j) under RequestNo. 1; and (b) Suggestions or recommended courses of action in response to the issues enumerated in sections (a) through (j) under Request No.1. Request No.3: All correspondence between you and Kris Kobach relating to the need for SB 1070 or other laws that increase local law enforcement powers to address immigration issues, or the drafting or language of SB 1070 and all related predecessor and subsequent bills since January 1,2006, including but not limited to the following bills: (a) Introduced in the Forty~ninth Legislature's 2010 Second Regular Session: HB 2162 (b) Introduced in the Forty-ninth Legislature's 2009 First Regular Session: AMERICAN CIVIL 1) SB 1159 LIBERTIES UNION FOUNDATION OF ARIZONA 2) SB 1175 3) SB 1280 (c) Introduced in the Forty-eighth Legislature's 2008 Second Regular Session: 4) SB 1408 5) SB 1459 (d) Introduced in the Forty-eighth Legislature's 2007 First Regular Session: 6) SB 1265 7) SB 1422 (e) Introduced in the Forty-seventh Legislature's 2006 Second Regular Session: SB 1157 Please comply with this request on 01' before August 13, 2011. See A.R.S. § 39- 121.01(D)(1) and (E) (stating that public records must be provided "promptli'). Arizona public records law carries with it a presumption that all records are "open to the public for inspection as public records." Carlson v. Pima County, 141 Ariz. 487, 490, 687 P.2d 1242 (1984). If this request is denied in whole or in part, please state the specific grounds for denial under the Public Records Law and provide us with the name and address of the person to whom an appeal may be directed. All severable portions of otherwise exempt material must be made available. FU11hermol'e, we reserve the right to appeal your decision to withhold any information. Thank you in advance for your cooperation. Please contact me at (602)773-600301' [email protected] if you have any questions 01' concerns. ~tAk- DanPochoda Legal Director, ACLU of Arizona