The Justice Department has asked a U.S. District Court judge in Vermont to dismiss six counts in a Freedom of Information Act lawsuit filed against the Commerce Department related to the First Responder Network Authority (FirstNet) and wants summary judgment on 12 other counts.

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.

Since filing the suit, the plaintiffs have filed a motion for partial summary judgment for 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” (TR Daily, Oct. 30).

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 …”

The defendant filed its motion to dismiss and for summary judgment yesterday. A memorandum in support of the motion also opposes the plaintiffs’ motion for summary judgment.

“Plaintiffs are not entitled to relief on any of their claims,” yesterday’s filing said. “First, Counts 1 through 5 of Plaintiffs’ Amended Complaint, which challenge the refusal of FirstNet to process five FOIA requests, 5 U.S.C. § 552, should be dismissed for failure to state a claim because 47 U.S.C. § 1426(d)(2) exempts FirstNet from the requirements of FOIA. Second, DOC is entitled to summary judgment on Counts 6 through 15, which challenge the responses of DOC and NTIA to certain FOIA requests submitted by Plaintiffs because, as explained in the supporting declarations, DOC and NTIA determined, based on the nature of the records requested that they were not reasonably likely to have responsive records.

“Third, DOC is entitled to summary judgment on Counts 16 and 17, which allege that certain purported policies and practices of FirstNet, DOC and NTIA violate the FOIA,” the filing added. “As explained, FirstNet’s practice of refusing to respond to FOIA requests is consistent with 47 U.S.C. § 1426(d)(2), which exempts FirstNet from FOIA. Count 17 is predicated on the erroneous assumption that DOC components have a per se policy of automatically referring all FOIA requests for records relating to FirstNet to FirstNet. Instead, DOC and NTIA make a case-by-case determination based on whether they are reasonably likely to have responsive records. Moreover, with respect to both Counts 16 and 17, there is no justification for such broad equitable relief because they have an adequate remedy with respect to any FOIA requests that may be denied in the future. Finally, Count 18, which alleges that DOC violated Section 208 of the E-Government Act should be dismissed for lack of jurisdiction and failure to state a claim.”

Meanwhile, the court has approved the plaintiffs’ motion to expedite consideration of the case. In seeking such consideration, the plaintiffs noted that governors have until Dec. 28 to decide whether to opt out of the FirstNet system and have someone other than AT&T, Inc., FirstNet’s network partner, build their RANs. —Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily