Hearing on Motions in FirstNet FOIA Lawsuit Set for Dec. 15
Thursday, November 30, 2017 | Comments

The debate over whether the First Responder Network Authority (FirstNet) is exempt from the Freedom of Information Act (FOIA) will move from paper filings and into the courtroom.

Judge Geoffrey W. Crawford set a hearing for Dec. 15 to consider several motions filed in the suit brought against the Department of Commerce (DOC) by a pair of Vermont residents. FirstNet is an independent authority within the DOC.

David Gram and Stephen Whitaker sued the DOC in October, arguing that the DOC, FirstNet and the National Telecommunications and Information Administration (NTIA), another component of DOC, had unlawfully denied FOIA requests for documents related to FirstNet.

Chief among the concerns laid out in Gram’s and Whitaker’s original complaint was DOC’s and its components’ claim that the Middle Class Tax Relief and Job Creation Act of 2012, which created FirstNet, exempted it from FOIA.

The two men argued that the particular provision in the legislation was intended to exempt FirstNet from the Administrative Procedure Act (APA), which houses FOIA, but not from FOIA, which they contend stands on its own from the APA.

Gram and Whitaker followed up their complaint with a motion for summary judgment on the claim that FirstNet is not exempt from FOIA, as well as a second claim that DOC and NTIA followed an unlawful process in transferring Gram’s and Whitaker’s requests to FirstNet without checking their own files for responsive records.

Crawford granted a request from Gram and Whitaker to expedite the case so that if the court ruled in their favor, they would have the requested information prior to the Dec. 28 deadline for states to opt in or out of FirstNet. The requested information is important so that they can be adequately informed to offer feedback to Vermont state decision-makers prior to the deadline, Gram and Whitaker argued.

Vermont opted in to FirstNet Nov. 29.

Lawyers for DOC responded to Gram’s and Whitaker’s motion with a motion to dismiss the case and for summary judgment.

The government’s motion asked the judge to dismiss five claims of the case, which cover five FOIA requests sent to FirstNet and the other components, on the grounds that FirstNet is exempt from FOIA. The government also asked the judge to dismiss another claim centered around FirstNet not performing a privacy impact assessment (PIA) on its state plan portals and other systems, arguing that the FirstNet state plan portals do not actually collect or distribute personal information.

The government’s motion also sought summary judgment on the other 12 claims in Gram’s and Whitaker’s complaint, which covered FOIA requests sent to DOC and NTIA and the process the agencies followed in forwarding those requests to FirstNet. The government’s motion argued that DOC and NTIA had followed a reasonable process in determining that they did not have records that were responsive to the requests.

Gram and Whitaker Nov. 25 filed a response to the government’s motion, reiterating their belief that while FirstNet is exempt from parts of the APA, it is not exempt from FOIA.

The two argued that while the rest of the APA covers actions taken and decisions made, FOIA does not involve those things, and the exemption in the legislation was intended to exempt FirstNet from those portions of the APA.

“An agency cannot take an action that is arbitrary and capricious. An agency cannot make certain decisions without engaging in the notice and comment process,” said the response. “These are provisions of the law ‘commonly referred to as the APA’ and replacing APA with FOIA renders the statutory provision nonsensical.”

Gram and Whitaker also attacked the government’s argument that FOIA was part of the APA when it was passed in the 1960s.

“However, saying that this historical fact means that FOIA is ‘commonly referred to as the APA’ is roughly analogous to saying that the fact that the United States was originally part of the British Empire means that the United States is ‘commonly referred to as Britain,” the response said.

The response further argued that when Congress recodified FOIA the year after its passage, it only rearranged that portion of the law and not all of the APA.

“It moved FOIA by itself and moved the rest of the APA separately, suggesting that even at the time it realized that FOIA was separate and distinct,” the response said.

In its motion to dismiss and for summary judgment, the government argued that DOC’s and NTIA’s process for transferring requests was based on reasonable determination that they did not have responsive records, and that Gram and Whitaker did not have standing to ask for legal relief.

“As the D.C. court held, prospective injunctive relief is only available in FOIA cases where the district court makes a finding that ‘the agency was adhering to a policy or practice that it acknowledged was impermissible and FOIA’s ordinary remedies were inadequate,” the government’s motion said.

The government also argued that DOC had partially responded to some of the FOIA requests by providing documents, mostly internal e-mails, related to the FirstNet state plans portal terms of use (ToU). This shows that DOC does not have a policy of automatically transferring any requests related to FirstNet.

In their response, Gram and Whitaker argued that DOC partially processed those requests following the filing of their lawsuit and that it did not prove DOC was following an unlawful process in transferring the requests.

“… Logic and common sense would suggest that if an agency cannot render a pattern or practice claim moot by voluntarily deviating from the alleged practice to obtain a litigation advantage, nor can it voluntarily deviate from an alleged practice to obtain a litigation advantage by arguing that the deviation shows that alleged practice does not exist,” the response said.

“In such a case, if the court were to grant summary judgment to DOC on the alleged grounds that it had shown that it had no practice of automatically referring requests to FirstNet without performing a search, it would leave DOC ‘free to return to its old ways,’ “ the response concluded.

Gram and Whitaker agreed to temporarily withdraw their motion for partial summary judgment on that particular claim because of DOC ceasing that practice.

“However, in doing so, plaintiffs do not concede that the alleged practice does not exist or that summary judgment is warranted for DOC on this count,” the response said. “Plaintiffs instead maintain that more information about this alleged practice is needed, either through supplemental declarations or discovery, before the court can intelligently rule on the question of whether the practice exists.”

The response also argued that courts can provide legal relief in FOIA cases beyond the circumstances laid out by the government’s motion.

“On the contrary, it is well-established that courts regularly decide FOIA matters, which do not involve withholding decisions,” the response said. “Courts decide if agencies have performed adequate searches, if agencies have properly denied fee waivers, if agencies have properly denied requests for expedited processing and various other questions wholly unrelated to the withholding of agency records.”

The two men also reiterated their argument from their earlier motion that if FirstNet is truly exempt from FOIA, the DOC and NTIA violated FOIA by forwarding the requests to an exempt agency.

“Accordingly, for purposes of FOIA, if FirstNet is not subject to FOIA, then referring a request to it is effectively referring the request outside of the agency, which agencies simply cannot do,” the response said.

Finally in regard to the government’s contention that it did not need a PIA for the state plans portal because it does not collect or distribute personal information, Gram and Whitaker responded that their complaint focused on both the state plan portals and other FirstNet systems, such as the broadband network itself.

Gram and Whitaker argued that because of the nature of a broadband network and the information that users will send over it, a PIA is necessary.

A final response from the government is due Dec. 6, according to a modified briefing schedule, and then the case will move to the hearing for the motions.

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