Government Reaffirms FirstNet Exemption from FOIA in Motion to Dismiss Lawsuit
Monday, November 20, 2017 | Comments

Government attorneys argued against claims that in creating the First Responder Network Authority (FirstNet), Congress did not intend to fully exempt the agency from the Freedom of Information Act (FOIA) in a motion to dismiss a FOIA-related lawsuit.

Vermont residents David Gram and Stephen Whitaker sued the Department of Commerce (DOC) in October, arguing that the DOC and its National Telecommunications and Information Administration (NTIA) and FirstNet components had illegally denied several FOIA requests seeking documents related to FirstNet. The two men also alleged that DOC and NTIA followed an illegal process in passing the requests along to FirstNet without first searching their records for documents responsive to the requests.

Gram and Whitaker followed their initial complaint with a motion for partial summary judgment. They asked the judge to decide the case based on the claims of FirstNet not being exempt from FOIA and the DOC and its components following an illegal process for forwarding requests. The other claims contained in the lawsuit, which referred to specific FOIA requests, would be addressed by the judge ruling on those two claims, they said in the motion.

In the Middle Class Tax Relief and Job Creation Act, which created FirstNet as an independent component of DOC, Congress exempted FirstNet from the Administrative Procedure Act (APA), which contains FOIA.

Gram and Whitaker argued that while Congress exempted FirstNet from the APA, there is no legislative history to show that legislators intended to fully exempt FirstNet from FOIA, which is commonly referred to separately from APA.

“Plaintiffs contention that the term ‘Administrative Procedure Act’ does not include section 552 is belied by the language and legislative history of the APA and the FOIA,” the government’s response said. “From the time that the APA was first adopted in 1946, it has always contained a section regarding access to public information.

“Indeed, in 1966 when Congress enacted the FOIA to allow the public to submit requests for information, the act stated that it was ‘an act to amend section 3 of the Administrative Procedure Act, chapter 324 of the act of June 11, 1946, to clarify and protect the right of the public to information and for other purposes,’ ” the response said.

The government also argued that if Congress had intended to exempt FirstNet only from some portions of the APA, it could have specified that in the act, but it didn’t.

“Therefore, there is no basis for reading the language of 47 U.S.C. 1426(d)(2) as only exempting FirstNet from certain sections of the APA,” the response said.

The government also argued against Gram and Whitaker’s contention that the Open FOIA Act of 2009 requires a government agency to specifically cite FOIA in withholding information from a FOIA request.

“That provision has no application here because the issue is not whether particular information being withheld by FirstNet under the FOIA is exempt from disclosure under Exemption 3,” the response said. “Instead, the issue here is whether FirstNet is subject to the FOIA at all, an issue not addressed by the Open FOIA Act.”

All told, Gram and Whitaker submitted 15 FOIA requests to FirstNet, DOC and NTIA seeking documents related to FirstNet. Some of the requested documents included:
• 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 state plans made available to U.S. governors in September
• The state plan portal terms of use, including correspondence relating to the terms

Upon receiving the FOIA requests not sent directly to FirstNet, NTIA and DOC officials determined that the requested items were FirstNet documents, and DOC and NTIA were unlikely to have them. Thus, the officials transferred the requests to FirstNet, which later denied them.

Gram and Whitaker argued in their motion that FOIA doesn’t require agencies to determine if another office would be more likely to contain the record but to search its records to determine if it has any responsive records. Additionally, they argued responsive records could include documents sent from FirstNet to NTIA and DOC.

“Although an agency must ordinarily demonstrate that it made ‘a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested’ … an agency is not required to conduct a search for records it is not reasonable likely to have,” the government’s response said.

The government’s response included a declaration from Brian Hobson, state plans director for FirstNet, who said the state plans portal is a system created by AT&T for FirstNet and is owned and controlled by FirstNet and not other components of DOC.

FirstNet issued several NTIA employees temporary access to the portal so it could demonstrate the portal, but the employees did not copy or download any information from the portal, according to a declaration from Kathy Smith, chief counsel and FOIA officer for NTIA. Staff from the DOC’s Office of the Inspector General (OIG) also received temporary access to fulfill their duties but also did not download or print any documents, said a declaration from Andrew Katsaros, assistant general for audit and evaluation for the OIG.

“Because FirstNet maintains the portal and retains control of the information contained in the portal, the fact that FirstNet granted certain employees of other DOC components access to view information in the portal does not make the portal or the information contained therein a DOC or NTIA record for purposes of FOIA,” the government’s response said.

The government argued that for a document to serve as an agency record under FOIA, the particular agency must have created or obtained the document, and the agency must have control of those documents when they requested.

“In this case, neither NTIA, OIG nor any DOC component (other than FirstNet) created either the portal or the comments submitted by the states,” the response said. “ Moreover, by viewing the information on an electronic system owned and maintained by FirstNet, they did not obtain possession of the information contained in the portal.”

The government offered a similar argument in terms of the requests for state opt-in decisions and the AT&T contract. FirstNet is an independent authority within DOC and is responsible for the nationwide network, so states are not required to inform NTIA or DOC of their decision to opt in, the response said. Likewise, because FirstNet is independent, no other DOC component was required to approve the contract, the response said.

Thus, the government concluded, other components of DOC would not be “reasonably likely” to have copies of those documents and were therefore justified in transferring the requests to FirstNet.

In regards to the PIA, Gram and Whitaker argued in their original complaint that the E-Government Act requires an agency to conduct a PIA before collecting and maintaining digital information that could identify individuals.

The government said FirstNet is not in violation of the act because personal information was only collected to grant portal access to individuals authorized by the state single point of contact and that information was not “collected, maintained or disseminated over the portal.”

A reply to the government’s response from Whitaker and Gram is due Nov. 21. Gram and Whitaker requested and received permission from the court to expedite the case because of the upcoming Dec. 28 deadline for states to decide whether to opt out of FirstNet. The judge is expected to make a decision prior to that deadline.

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