– TR Daily, January 2, 2018

A U.S. District Court judge in Vermont recently granted a motion to dismiss or grant summary judgment in favor of the government on all but one of 18 counts in a Freedom of Information Act (FoIA) lawsuit seeking First Responder Network Authority (FirstNet) records.  The court said FirstNet was exempt from FoIA under the Middle Class Tax Relief and Job Creation Act of 2012, which created FirstNet.

On the last count, Judge Geoffrey W. Crawford reserved making a decision on summary judgment pending a supplemental briefing. The count “requests injunctive relief prohibiting FirstNet from collecting personally identifiable information until proper privacy impact assessments are complete,” the judge noted in his Dec. 20 decision. “The defendant moved to dismiss count 18 for lack of jurisdiction and failure to state a claim.”

The suit (“Stephen Whitaker and David Gram v. Department of Commerce,” case 5:17-cv-192) was filed by Stephen Whitaker, a Vermont resident and government accountability advocate, and David Gram, a reporter for “VTDigger,” a non-profit web-based publication (TR Daily, Oct. 6, 2017).

On Dec. 22, the plaintiffs filed a motion for certification of an interlocutory appeal.

“In general, an order for partial dismissal or summary judgment is not considered to be a final judgment subject to immediate appellate review under 28 U.S.C. § 1291,” the plaintiffs said in a memo supporting their motion. “Nevertheless, a district court may grant leave to file an interlocutory appeal under 28 U.S.C. § 1292(b), if it determines that three conditions have been met: (1) ‘the ruling on which the appeal is sought involves a controlling question of law’; (2) ‘there is substantial ground for a difference of opinion as to that controlling question of law’; and (3) ‘an immediate appeal will materially advance the litigation.’”

“Plaintiffs seek certification of the questions at issue in counts 1-17,” the memo said. “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 ever considered this question directly and then analyzed the relevant statutory language itself, while also acknowledging that ‘most lawyers and judges associate the APA [Administrative Procedure Act] with rulemaking and judicial review of agency action,’ lending support to plaintiffs’ position. With respect to the central legal dispute in counts 6-15 and 17, namely, whether DOC components can refuse to perform a search for responsive records and then refer the request to an office it maintains is not subject to FoIA, 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. Plaintiffs respectfully assert that these conclusions were in error and contend that the requirements for interlocutory review are met.” —Paul Kirby, paul.kirby@wolterskluwer.com