A Freedom of Information Act (FoIA) lawsuit was filed against the Commerce Department today seeking records related to the First Responder Network Authority (FirstNet). The suit (“Stephen Whitaker and David Gram v. Department of Commerce”; no. 5:17-cv-192) was filed in the U.S. District Court in Vermont 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.  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.

Messrs. Whitaker and Gram have filed a number of FoIA requests with the Commerce Department, the National Telecommunications and Information Administration (NTIA), and FirstNet, which is an independent authority within NTIA, seeking records such as opt-in notifications from states, state plans prepared by FirstNet, and contracts or other agreements between FirstNet and AT&T, Inc., FirstNet’s network partner (TR Daily, Sept. 8).

Commerce has referred a number of FoIA requests to FirstNet, which has noted that under section 6206(d)(2) of the Middle Class Tax Relief and Job Creation Act of 2012, which established FirstNet, FirstNet is exempt from FoIA requirements.

However, the complaint filed today suggested that FirstNet is subject to FoIA. It noted that the law that established FirstNet said it was exempt from requirements of chapter 5 of title 5 of the Administrative Procedures Act. “While FOIA is located in ‘chapter 5 of title 5,’ it is not ‘commonly referred to as the Administrative Procedures Act,’” as the law says, the lawsuit said. “Therefore, this statute does not properly exempt FirstNet from the requirements of FOIA.”

The lawsuit says the plaintiffs have submitted 11 FoIA requests directly to FirstNet and 17 to Commerce components, nine of which have been referred to FirstNet while they “have refused to search their own records for copies in their possession.” The lawsuit contends that an agency component is not allowed under FoIA to refuse to search its records “simply because they allegedly ‘belong’ to another agency component.” An agency also can’t “refer a FOIA request (or even records responsive to a FOIA request) to an entity which is not subject to FOIA,” according to the complaint.

The lawsuit, among other things, asks the court to order Commerce and its components to release relevant records, find that FirstNet violated FoIA by refusing to process requests, order FirstNet to process all requests filed since 2012, order FirstNet to announce that it is now accepting FoIA requests, declare that Commerce violated FoIA by referring requests to components rather than searching for the records itself, declare that Commerce violated the E-Government Act of 2002 by failing to publish privacy impact assessments (PIAs) for FirstNet systems that collect personally identifiable information about private individuals, and order Commerce to conduct such PIAs.

A FirstNet spokesman said it had not reviewed the complaint in order to comment, while NTIA declined to comment and Commerce did not respond to a request for comment.— Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily