Plaintiffs Seek Partial Summary Judgment in FirstNet FoIA Complaint

Plaintiffs who recently filed a Freedom of Information Act (FoIA) lawsuit against the Commerce Department seeking records related to the First Responder Network Authority (FirstNet) asked a court today to grant partial summary judgment.

The suit (“Stephen Whitaker and David Gram v. Department of Commerce,” case 5:17-cv-192) was filed in the U.S. District Court in Vermont earlier this month by Stephen Whitaker, a Vermont resident and government accountability advocate, and David Gram, a former Associated Press reporter who now works for “VTDigger,” a non-profit web-based publication that is a project of the Vermont Journalism Trust (TR Daily Oct. 6). It seeks status as a class action on behalf of everyone who has filed a FoIA request since 2012 but saw it rejected on the grounds that FirstNet is not subject to FoIA.

The motion for partial summary judgment submitted today seeks judgment in favor of the plaintiffs on two of the 18 counts “on the grounds that no genuine issue as to any material fact exists and Plaintiffs are entitled to judgment as a matter of law.”

One of those counts deals with FirstNet’s refusal to process the plaintiffs’ FoIA requests. FirstNet noted in response to FoIA requests that under the Middle Class Tax Relief and Job Creation Act of 2012, which created FirstNet, the authority is exempt from FoIA. But the complaint contends that the law “did not fully exempt FirstNet from FOIA.”

The other count for which the plaintiffs are seeking summary judgment alleges that Commerce Department components have referred FoIA requests to FirstNet and “have refused to search their own records for copies in their possession …”

“Because each of these policies, patterns, or practices violates FOIA, Plaintiffs asked this Court to declare them to be in violation of FOIA and enjoin DOC from implementing them in Counts 16-17,” the motion filed today said. “For the reasons provided below, the Court should grant summary judgment to Plaintiffs on Counts 16-17 because there are no genuine issues of material fact and immediately enjoin FirstNet and DOC from following these two policies, patterns, or practices. This relief will have a hydraulic effect in this case, because Defendant will then be forced to properly process the requests at issue in Counts 1-15, which is why Plaintiffs are only seeking partial summary judgment on those two counts at this time. Plaintiffs do not maintain that they are entitled to summary judgment yet on those counts about individual requests because no record has been created for them at this time, since no component has performed searches to identify responsive records or released any records.”

Meanwhile, the plaintiffs on Friday filed a motion asking the court to expedite consideration of the case, noting that governors have a Dec. 28 deadline to decide whether to opt out of the FirstNet system. They also filed a proposed stipulated briefing schedule. —Paul Kirby,

Courtesy TRDaily