Court Rules in Favor of FirstNet in Appeal of FirstNet Privacy, FOIA Case
Wednesday, August 19, 2020 | Comments

The U.S. Court of Appeals for the Second Circuit ruled in favor of the First Responder Network Authority (FirstNet) in an appeal over FirstNet’s obligations under the Federal Open Information Act (FOIA).

In 2017, Vermont resident Stephen Whitaker and David Gram filed a lawsuit against the FirstNet Authority, the Department of Commerce (DOC) and the National Telecommunications and Information Administration (NTIA), arguing that FirstNet and NTIA had incorrectly denied FOIA requests for more information about FirstNet’s contract with industry partner AT&T and that FirstNet had not performed a required privacy impact assessment (PIA).

In response to the two men’s argument that the FirstNet Authority had incorrectly denied their FOIA requests, the FirstNet Authority argued that the Middle Class Tax Relief and Job Creation Act of 2012, which created the FirstNet Authority, exempted the authority from FOIA rules. In December 2017, a Vermont district judge agreed with the authority and dismissed the FOIA-related claims in the lawsuit.

On the privacy claim, Gram and Whitaker argued that because personally identifiable information (PII) from citizens would be transmitted over the network, the FirstNet Authority needed to perform a PIA. The lawsuit was filed before deployment of the network began. The network is now at about 80 percent buildout, according to AT&T.

The FirstNet Authority argued that a PIA was unnecessary because while PII would be transmitted over the network, the authority itself would not be collecting or storing any information. All information would be stored and collected by AT&T, which does not fall under the same rules as the government organization, the FirstNet Authority argued.

In July 2018, the Vermont district judge also dismissed the privacy claims against the FirstNet Authority, finding that the claim was unripe for review because the network was not operational at that point. Additionally, the judge ruled that the two men did not have standing to bring the claim because they could not prove that their PII was in jeopardy of unwarranted disclosure because of the network.

Whitaker and Gram appealed those decisions, arguing that the district court had erred by ruling that FirstNet is not subject to FOIA, by finding that DOC and NTIA not searching for records related to FirstNet was lawful and by determining that they lacked standing to bring the privacy lawsuit.

The appeals court ruled that the district court did not err in concluding that FirstNet is not subject to FOIA and that the agencies did not need to search their records because they had determined such records would not exist.

The legislation that created FirstNet says FirstNet is exempt from “chapter 5 of title 5 (commonly referred to as the Administrative Procedure Act),” which includes FOIA. Gram and Whitaker argued that because FOIA is not commonly referred to as the Administrative Procedure Act (APA), the language does not exempt FirstNet from FOIA but only other administrative requirements of the APA. FirstNet argued that the language was merely parenthetical that did not change the exemption.

“It is true, as plaintiffs argue that the term ‘APA’ is commonly used to refer to that statue’s provisions on rulemaking and judicial review of agency action, rather than to the subset of provisions enacted as part of FOIA,” the court said. “As the district court correctly observed, however, that common usage does not negate that ‘FOIA is codified in company with the more familiar provisions of the APA within Title 5, Chapter 5.’ ”

The court also argued that the statutory history of the APA and FOIA supported its conclusions that FirstNet is exempt from FOIA.

In their original lawsuit, Whitaker and Gram argued that the DOC and NTIA illegally did not search their records for records responsive to their FOIA requests when they first submitted them. The agencies argued that they did not need to search for them because they reasonably determined that such a search would be futile.

The appeals court noted that the issue was one of “first impression” for the district cited other circuits that determined a search was not necessary if an organization determined in good faith that such records do not exist.

“We see no reason to depart from the sensible and persuasive approach employed by the courts that have considered this question, and we therefore conclude that an agency need not conduct a search that it has reasonably determined would be futile,” the court said.

The appeals court also determined that the privacy claim was still unripe for review given the evidence in the case and did not address the issue of standing because of that factor.

“We're disappointed that the court uncritically accepted as fact every claim the agency made simply because we didn't magically provide evidence of its inaccuracy,” Whitaker said. “It's the agency's job to prove their claims, and the court just removed any teeth from that rule by saying that they can prove their claims by just saying 'because we said so.

A FirstNet spokesperson said the authority was pleased with the court’s ruling.

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