A U.S. District judge in Vermont has dismissed the remaining count in a Freedom of Information Act (FoIA) lawsuit seeking First Responder Network Authority (FirstNet) records. Last December, Judge Geoffrey W. Crawford ruled that FirstNet was exempt from FoIA under the Middle Class Tax Relief and Job Creation Act of 2012, which created FirstNet (TR Daily, Jan. 2). He rejected 17 of the 18 counts in the suit.

On the last count, Judge Crawford reserved making a decision on summary judgment pending a supplemental briefing. The count requested “injunctive relief prohibiting FirstNet from collecting personally identifiable information until proper privacy impact assessments are complete,” the judge noted in the earlier decision.

In a recent decision in “Stephen Whitaker and David Gram v. Department of Commerce,” (case 5:17-cv-192), Judge Crawford noted that in his decision last December, “the court determined that the NPSBN [national public safety broadband network] was not yet operational and thus any claim alleging deficient privacy impact assessments was unripe. The parties have subsequently addressed the question of whether the NPSBN is operational. The court has examined [a] … declaration submitted by the DOC [Department of Commerce], and the court concludes that the … declaration establishes beyond genuine dispute that the NPSBN remains nonoperational. To the extent that the Section 208 claim relates to the NPSBN, it remains unripe for review.”

The judge also said, “Having failed to show a cognizable informational injury, the Plaintiffs are unable to demonstrate any injury-in-fact and thus unable to demonstrate that they have standing to bring suit under Section 208. Accordingly, Count 18 is dismissed for lack of subject matter jurisdiction.”

The plaintiffs plan to appeal the court’s rulings.

“We have been awaiting our opportunity to appeal the FOIA counts for months,” said one of them, Stephen Whitaker, a Vermont resident and open-government advocate. “Now the entire range of claims of both privacy and access counts can be reviewed by the higher court. The magnitude of these issues necessitate greater transparency and public awareness of the implications of all of the data, videos and photos of emergency response and surveillance cameras getting into the data warehouses of AT&T with inadequate regulation and oversight as has occurred in a more limited fashion with AT&T’s Hemisphere cell tracking database service.”

In May, Judge Crawford denied a motion by the plaintiffs to file an interlocutory appeal of his decision to dismiss or grant summary judgment in favor of the government on all but one of 18 counts (TR Daily, May 3).- Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily