FirstNet FoIA Plaintiffs Ask Court to Reject Government Motion

Plaintiffs in a Freedom of Information Act lawsuit seeking First Responder Network Authority (FirstNet) documents asked a U.S. District Court judge in Vermont today to reject a request by the Justice Department on behalf of the Commerce Department that the court dismiss six counts in the FoIA lawsuit and grant summary judgment on 12 other counts (TR Daily, Nov. 15).

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 last 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.

In a filing today, the plaintiffs said they “sought expedited summary judgment of two counts — Counts 16 and 17 — so that the Court could quickly and efficiently dispense with the most significant arguments in this case in light of the rapidly approaching deadlines facing Plaintiffs for which the requested information is needed. Instead of confining its brief to those two discrete issues, however, DOC seeks to muddy the waters by seeking dismissal or summary disposition of all of the eighteen counts. … Notwithstanding DOC’s attempt to burden this Court with a significant amount of labor in a transparent attempt to delay its resolution of the questions of greatest importance, Plaintiffs nonetheless remain confident that the law and the facts support resolution of both motions in their favor.”

In other FirstNet news, a Vermont legislative counsel said in a recent memo to a state legislator that state lawmakers have a right to review the governor’s decision on whether to opt in or out of FirstNet.

In the memo to House Energy and Technology Committee Chairman Stephen Carr (D.), Maria Royle, a legislative counsel, said, “Based on State statute and the legal principles embedded within the constitutional doctrines of separation of powers and federalism, an argument can be made that any decision by the Governor to either opt in or opt out of the FirstNet State Plan implicates legislative approval authority. There is no explicit delegation of decision-making power to the Governor in either the Vermont statutes or the Vermont Constitution authorizing him to act unilaterally here. On the contrary, State statute establishes a mechanism for legislative review of such policy decisions. This mechanism aligns with the Vermont Supreme Court’s interpretation of the proper roles of the Legislative and Executive Branches of government. Therefore, a decision by the Governor to either opt in or opt out, without the opportunity for legislative review, would unconstitutionally contravene the legislative authority of the General Assembly. The fact that federal law tasks the Governor, not the General Assembly, with making the FirstNet decision would not likely change this legal outcome.”

The Vermont Public Safety Broadband Network Commission voted last week to recommend that Gov. Phil Scott (R.) opt into the FirstNet system (TR Daily, Nov. 20). —Paul Kirby,

Courtesy TRDaily