Judge Rules FirstNet is Exempt from FOIA, Appeal Requested
Thursday, December 28, 2017 | Comments

A Vermont judge affirmed Dec. 20 that the First Responder Network Authority (FirstNet) is exempt from the Freedom of Information Act (FOIA) in granting motions for dismissal and summary judgment filed by the U.S. government.

U.S. District Court Judge Geoffrey Crawford made the decision in the lawsuit brought against the Department of Commerce (DOC) by Vermont residents Stephen Whitaker and David Gram. FirstNet is an independent authority of DOC.

Whitaker and Gram filed the lawsuit in October after DOC, FirstNet and the National Telecommunications and Information Administration (NTIA), another component of DOC, denied FOIA requests seeking a variety of documents related to FirstNet.

The two men requested that Crawford expedite the case because of the Dec. 28 deadline for states to opt in to FirstNet. Crawford granted that request. In addition, Gram and Whitaker filed a motion asking for summary judgment, which Crawford denied when granting the government’s two motions.

Following the judge’s decision, Gram and Whitaker Dec. 22 filed a request asking to appeal the judge’s decision to the U.S. Court of Appeals for the Second Circuit.

Generally, orders for partial dismissal or summary judgment are not seen as final judgments that are subject to review by an appeals court. However, a party in a case can ask a court to allow an appeal as long as the following conditions are met:
• The ruling involves “a controlling question of law;”
• There is substantial ground for a difference of opinion on that question of law; and
• An immediate appeal would move the litigation toward completion.

Gram and Whitaker’s lawsuit focused on three major issues. First, in response to Gram and Whitaker’s FOIA requests, FirstNet said the legislation that created it exempted it from FOIA. Second, Gram and Whitaker argued that NTIA and DOC followed an illegal process by automatically transferring FOIA requests directly to FirstNet without searching their own files for responsive records. The third issue revolved around whether or not FirstNet has performed required privacy impact assessments (PIAs).

The Middle Class Tax Relief and Job Creation Act of 2012, which created FirstNet, exempts FirstNet from the requirements of the Administrative Procedures Act (APA), which contains FOIA. Gram and Whitaker argued that through the years, FOIA has come to stand on its own from APA; therefore, the legislation exempted FirstNet from the APA but not FOIA.

Crawford disagreed with that argument in his order and said FOIA’s location in the APA makes it a part of that act.

“It is true, of course, that most lawyers and judges associate the APA with rulemaking and judicial review of agency action,” Crawford wrote. “FOIA is not the first subject which comes to mind when someone refers to the APA. But, the common usage of the term APA to refer to the more familiar elements of the statute does not alter the fact that FOIA is codified in company with the more familiar provisions of the APA within Title 5, Chapter 5.

“In the face of an unambiguous statute which exempts FirstNet from the APA, the court must follow the legislative directive,” Crawford wrote. “FirstNet is not subject to FOIA requests.”

On the second issue, Gram and Whitaker argued that DOC and NITA had illegally forwarded requests sent to them to FirstNet without first checking their own records. In its own filing, the government provided several declarations from NTIA and DOC employees that it said showed that the departments determined that they would not have responsive records before forwarding the requests to FirstNet. In his order, Crawford noted that in summary judgments in FOIA cases, declarations from agency officials about handling FOIA requests “are entitled to a presumption of good faith.”

“Here, the plaintiffs have submitted no evidence contradicting or casting any doubt on the facts set forth in the agency declarations submitted by the defense, nor have they provided any evidence from which could be drawn any permissible inference creating any dispute as to the facts set forth in the agency declarations,” Crawford wrote.

“The plaintiffs protest that the declarations are deficient in several respects, principally with respect to the basis of the agency officials’ conclusion that the agencies were not likely to possess responsive records,” Crawford’s order said. “ But none of the plaintiffs’ objections are sufficient to overcome the presumption of good faith to which the officials are entitled or to raise any genuine factual dispute.”

Crawford also ruled that previous cases supported DOC and NTIA’s transfer of the requests to FirstNet.

“The unifying principle that emerges from these decisions is that when an agency reasonably determines, based on the nature of the request and the scope of the agency’s operations, that it is unlikely to have responsive records and that a search is likely to be futile, it need not proceed with a search,” Crawford said.

“The NTIA and DOC reasonably determined, based on the scope of their operations, that they were unlikely to have any records responsive to the requests which focused on FirstNet,” Crawford concluded. “The court finds no genuine dispute as to the sufficiency of the agency declarations to establish the futility of searches for records responsive to the plaintiffs’ requests.”

On the third issue, Gram and Whitaker argued that FirstNet had not performed required PIAs on its state plan portals and other FirstNet-related systems. Crawford did not rule on that particular issue, saying that because the case was expedited for the FOIA-related issues, the two parties had not had an opportunity to present all information related to the PIA issue to the court.

The judge requested a supplemental filing from the government addressing several questions related to the state plans portal and how FirstNet collects information for it. That document is due Jan. 19. A supplemental filing from Gram and Whitaker is due Feb. 3.

In their request for an appeal, Gram and Whitaker argued that the first condition for allowing an appeal was met in regard to FirstNet’s exemption from FOIA because it is a topic that has not often been addressed in the courts.

“With respect to the central legal dispute in counts 1-5 and 16, namely, whether the First Responder Network Authority (FirstNet) is subject to FOIA, this court recognized that no court has considered this question directly and then analyzed the relevant statutory language itself, while also acknowledging that ‘most lawyers and judges associate the APA with rulemaking and judicial review of agency action,’ lending support to plaintiff’s position,” Gram and Whitaker’s motion said.

On the second issue, regarding the transfer of the requests, Gram and Whitaker said that they disagreed with the court’s conclusions.

“… the court acknowledged that there is no controlling authority on the question of when an agency may refuse to perform a search but then concluded from its review of other district court decisions that agencies are entitled to a presumption of good faith in their declarations of such magnitude that even conclusory statements establish the absence of any genuine issue of material fact,” their request said. “Plaintiffs respectfully assert that these conclusions were in error and contend that the requirements for interlocutory review are met.”

For the second prong of the appeal request, Gram and Whitaker argued that because the questions raised by their case had not been addressed in the Second Circuit and that the court acknowledged the validity of arguments from both parties, demonstrating “substantial grounds for differences of opinion,” the second requirement was satisfied.

For the third requirement, Gram and Whitaker argued that an appeal of the first two issues would not interfere with the ongoing PIA issue because that issue is distinct from the first two. Additionally, an immediate appeal of those issues would bring the case closer to its conclusion and prevent the court from reopening “an otherwise-finished case” once the PIA issue is concluded.

Finally, Gram and Whitaker argued that even though the deadline for states to opt in has nearly passed, there will continue to be a debate over FirstNet, meaning that the appeal should proceed immediately.

As of press time, Crawford had not ruled on Gram and Whitaker’s request, and the government had not filed a response. “We are pleased with the court’s decision affirming that under the act, the First Responder Network Authority is exempt from FOIA,” a FirstNet spokesman said.

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