Government Opposes Motion for Appeal in FirstNet FOIA Case
Tuesday, January 09, 2018 | Comments

Lawyers for the Department of Commerce (DOC) filed an opposition to a request for appeal in a lawsuit over whether the First Responder Network Authority (FirstNet) is exempt from the Freedom of Information Act (FOIA), describing the case as run of the mill.

“Ever since filing their original complaint, plaintiffs have attempted to dress this FOIA case up as something out of the ordinary by adding policy and practice claims, seeking expedited review of the entire case, and by styling the case as a class action,” the government’s filing said. “In fact, this case is a run-of-the-mill FOIA case in which plaintiffs requested documents, and defendant, through this litigation, has provided support for its response to plaintiffs’ FOIA requests.”

In October, Vermont residents Stephen Whitaker and David Gram sued the DOC, arguing that DOC; FirstNet, an independent authority of DOC; and the National Telecommunications and Information Administration (NTIA), another component of DOC, had illegally denied requests for information related to FirstNet. The lawsuit also said that DOC and NTIA had followed an illegal process in forwarding requests sent to them to FirstNet.

A key dispute in the case was whether FirstNet is fully exempt from the requirements of FOIA.

In December, Vermont U.S. District Court Judge Geoffrey Crawford granted the government’s motion to dismiss several counts based on the FOIA exemption issue and a motion for summary judgment on the issue of the process that NTIA and DOC used to forward requests to FirstNet.

The judge did not rule on a third issue, about whether FirstNet must perform privacy impact assessments (PIA), at that time. Briefs on that particular issue are due in February.

In his decision, Crawford found that the legislation that created FirstNet does fully exempt it from FOIA and that statements provided by DOC and NTIA employees showed that the departments followed FOIA when forwarding requests for information to FOIA.

Normally, orders for partial dismissal or summary judgment are not seen as final judgments until a case is completed, but a party can ask for the right to appeal sooner. Gram and Whitaker asked the judge for permission to appeal the decisions to the Second Circuit Court of Appeals.

In their request for an appeal, Gram and Whitaker argued that the case covered FOIA issues that had not been previously addressed by the Second Circuit; that the judge acknowledged the validity of both sides’ arguments, showing that there was “substantial ground for difference of opinion;” and that the early appeal would move the case forward and prevent it from being reopened once the PIA issue is completed. These three elements meet the requirements for an early appeal, Gram and Whitaker said in their request.

The government disagreed with all three of Gram’s and Whitaker’s arguments and said that the two men are not entitled to an early appeal.

In response to Gram and Whitaker’s arguments that the case covered issues not before addressed in the Second Circuit, the government cited a 2015 case in which the judge determined “the mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion.”

“If plaintiffs’ logic were routinely followed, every district court determination of a new legal question — no matter how narrow or fact specific — would warrant an immediate interlocutory appeal,” the government’s filing said. “This is not the law and with good reason: District courts are routinely called upon to make initial determination of how laws apply to new facts, and an exception of this type would swallow the final judgment rule.”

On the second requirement, the government argued that the judge was correct in his ruling that there were not grounds for a substantial difference of opinion.

“Although plaintiffs imply that the issue of FirstNet’s exemption from FOIA was particularly difficult and state (without support) that the court ‘acknowledged the validity of the arguments on both sides before performing its independent analysis,’ … nothing in the court’s opinion indicates that the court had difficulty reaching the conclusion that 47 U.S.C 1426(d)(2) exempts FirstNet from the entirety of chapter 5 of title 5 of the U.S. Code,” the government’s filing said.

Chapter 5 of title 5 is the Administrative Procedures Act (APA), which contains FOIA.

“To the contrary, this court acknowledged plaintiffs’ arguments but held that it is satisfied that FOIA falls within ‘chapter 5 of title 5 …’ and that FirstNet is accordingly exempt from FOIA, based on the unambiguous language of the statutory text,” the government’s filing said.

The government reached a similar conclusion on the issue of agencies forwarding requests to different agencies.

“Although the Second Circuit may not have addressed the narrow issue squarely, nothing in this court’s opinion suggests that the ruling was ‘difficult’ or that ‘there is conflicting authority on the issue,’ “ the government’s filing said.

On the issue of moving the case forward, the government said that allowing an appeal now would only complicate the case. The government raised the possibility that the PIA issue would be dismissed soon and said that allowing an appeal right now could lead to two appeals on the same case at the same time, an inefficiency that U.S. law tries to avoid.

“… In part because Count 18 (the PIA issue) may be resolved soon, plaintiffs’ reference to the ‘specter of a lengthy delay’ seems unlikely,” the government’s filing said. “But regardless, plaintiffs again reference the routine delay in appealing issues that are decided during district court litigation; far from being extraordinary, this is the way our court system functions.”

It is unclear when Crawford will make a decision on Gram and Whitaker’s request for an early appeal.

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Comments
On 1/10/18, DCSERKITS said:
The marketing benchmarks per state would be interesting. Are we talking about gutting 100 percent of each competitor's share of public-safety broadband and shifting those accounts to AT&T? Are they counting on, for example, not just one device per fire engine but one for the engine and four more, one for each firefighter? If they don't hit the marketing goals due in large measure to poor coverage and not enough sites then fine AT&T for failure to reach marketing goals. Does FirstNet then give the money right back to AT&T to build more sites to... wait for it.... entice more users? Sounds circular to me.

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