Lawsuit Against Commerce Regarding FirstNet Filed in Vermont District Court
Friday, October 06, 2017 | Comments

Two Vermont citizens filed a class-action lawsuit against the Department of Commerce pursuant to the Freedom of Information Act. The DOC oversees the First Responder Network Authority (FirstNet) and the National Telecommunications and Information Administration (NTIA).

Stephen Whitaker and David Gram filed the complaint in the U.S. District Court of Vermont. The class represented by the plaintiffs also consists of anyone who submitted a FOIA request to FirstNet or any other DOC component since Feb. 22, 2012, and whose request was ultimately rejected, the complaint said.

The complaint said common questions include and involve whether FirstNet is subject to FOIA, as well as whether other DOC components can refer requests to FirstNet instead of searching their own systems for responsive records and processing them. Certain defenses raised by DOC would apply equally to all members of the class.

The complaint cites 18 causes of action, the first 15 of which relate to previous FOIA requests of DOC, NTIA and FirstNet, which FirstNet rejected, saying the Middle Class Tax Relief and Job Creation Act exempts FirstNet from FOIA requirements.

The FOIA requests included the following:

• All user comments submitted to FirstNet’s state plans portal

• All communications from any state government officials to FirstNet, which the agency considers to be agreements (or proposed agreements) to opt in to the FirstNet system

• All privacy impact assessments (PIAs) created for systems affiliated with FirstNet

• All contracts, agreements, memoranda of understanding, etc. with AT&T pertaining to FirstNet

• Copies of all FirstNet state plans made available to U.S. governors last month.

• The state plan portal terms of use including correspondence relating to the terms.

The 16th cause of action in the complaint said that the plaintiffs have submitted six FOIA requests to FirstNet, and FirstNet refused to process them every time. This activity represents an ongoing policy, practice or standard operating procedure (SOP). A policy, practice or SOP that refuses to process any FOIA requests is in violation of FOIA, the suit said.

In addition, the plaintiffs submitted 12 FOIA requests to DOC components besides FirstNet for records about FirstNet activities, and DOC components referred every request except one — which it ultimately agreed to process after determining that the records were not FirstNet records — to FirstNet and have refused to search their own records for copies in their possession. This activity represents an ongoing policy, practice or SOP, the complaint said.

The complaint said an agency component cannot refuse to search for records in its own possession simply because they allegedly “belong” to another agency component. It may refer the request to the second component, but it must still search for its own copies and process any responsive records for release. Furthermore, an agency may not refer a FOIA request to an entity, which is not subject to FOIA. A policy, practice or SOP that authorizes an agency to do either is in violation of FOIA.

Finally, the complaint said that under the E-Government Act of 2002, any agency “initiating a new collection of information …” is required to complete a privacy impact assessment (PIA) before initiating such collection. FirstNet is subject to the E-Government Act, the plaintiffs said.

The complaint said DOC has only published one PIA for a FirstNet system, which is used solely for office administrative functions. DOC has not conducted a PIA for the state portals or any system that collects personally identifiable information (PII) about its users, nor has it conducted a PIA for any system that would be able to collect and store information about the calls being routed through the FirstNet system once it is operational.

“DOC’s failure to take these steps constitutes agency action unlawfully withheld or unreasonably delayed in violation of 5 U.S.C. § 706(1),” the complaint said. “Plaintiffs are being materially harmed by this inaction because they are being denied information about how these systems — which will be rich in PII about private citizens — are being designed and used.”

In their complaint, Whitaker and Gram asked the court for a variety of relief including:

• Order the DOC to provide them with all responsive records as practicable;

• Declare FirstNet’s policy of refusing requests a violation of FOIA

• Order FirstNet to process all FOIA requests it has received since Feb. 22, 2012; and

• Order the DOC to conduct PIAs for the FirstNet system prior to collection of any personal information by those systems, among other requests.

Whitaker describes himself as a transparency advocate, and Dave Gram works for VTDigger, an independent, investigative news organization covering Vermont.

Attorney Kel McClanahan of National Security Counselors will actively conduct and be primarily responsible for the action on behalf of the plaintiff class, in concert with Attorney Robert Appel.

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Comments
On 10/11/17, Cecil said:
I worked in the federal space for many years, and in all that time, I never heard of anything being exempt from FOIA. A federal agency is required to respond to a FOIA in a timely manner — rare exceptions being related to security concerns. With FirstNet being a public-safety entity I believe the questions being asked are reasonable.

There is a section in the title being quoted having to do with HIPPA, which should be protected but the questions I'm aware of are not related to this section.

On 10/11/17, DCSERKITS said:
When your government wants to hide something for at least 25 years, it is either a national security issue or something along the lines of the Kennedy assassination. A contract for services does not rise to either standard. We don't even know if AT&T took any exceptions to the bid, and if so, what those exceptions were. As AT&T locks up all public-safety data and sooner than later mission-critical voice PTT-over-LTE and NG 9-1-1 nationwide, will ANYONE raise the issue of monopoly? Where is Judge Greene?

On 10/11/17, GK said:
I was really excited about FirstNet a few years ago. Now I'm discouraged and pissed. It's turned out to be a secretive, corrupt endeavor. My taxes are going where? And now I want to know how AT&T got this thing and what they get. I want to know what these state plans and contracts are and how governors are responding to them. Who even schools them in how to respond and what public safety requires of this system? Then there's the whole private information issue. Just so mad about FirstNet.

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