in Newswire Published on October 11, 2017

Class Action Against Dept. of Commerce Challenges Whether FirstNet is FOIA-Exempt

Last Updated on May 8, 2018

Whitaker et al. v. Department of Commerce

Filed: October 6, 2017 ◆§ 5:17-cv-00192-gwc

Two plaintiffs challenge the Dept. of Commerce's stance that the in-the-works First Responder Network Authority is exempt from the Freedom of Information Act.

Defendant(s)

Department of Commerce

Law(s)

State(s)

Vermont

Categories

Technology Government

Two Vermont residents have filed a proposed class action against the U.S. Department of Commerce (DOC) that challenges the government’s position that the First Responder Network Authority (FirstNet) is not subject to the Freedom of Information Act (FOIA). The plaintiffs, one of whom a veteran journalist, seek to argue whether it is legal for DOC components to refer FOIA requests to FirstNet rather than search their own systems for response records.

The proposed class covered by the suit includes anyone who, since February 22, 2012, has attempted to file a Freedom of Information Act (FOIA) request with the First Responder Network Authority (FirstNet) that was rejected on the grounds that FirstNet is not subject to FOIA, as well as anyone who attempted to file a FOIA request with another DOC arm that was referred to FirstNet and then was rejected.

The complaint notes that FirstNet was set up by Congress in 2012 with the goal of building and operating a public safety broadband network interoperable between first responders nationwide. The ambitious project, the setup for which was contracted to AT&T, is still going through its final state and territorial planning phase, with states under a December 28, 2017 deadline to either opt in or propose an alternative plan. (As of this suit’s filing, Vermont has not made a decision to opt in.)

The plaintiffs say that after being informed all user comments made through FirstNet’s portal would be removed, they submitted a FOIA request to FirstNet, the DOC and the National Telecommunications & Information Administration (NTIA) on September 1, 2017 for user comments posted through FirstNet’s portal. Six days later, the lawsuit says, the plaintiffs were informed FirstNet would not accept their request, with the agency citing a section of the Middle Class Tax Relief and Job Creation Act (“commonly referred to” as the Administrative Procedures Act) ostensibly exempting FirstNet from FOIA requirements.

However, the plaintiffs believe they’ve come across a technicality that does not exempt FirstNet from information requests:

“While FOIA is located in ‘chapter 5 of title 5,’” the case says of the section of the 2012 law cited in the plaintiffs’ FOIA rejection, “it is not ‘commonly referred to as the Administrative Procedures Act.’ Therefore, this statute does not properly exempt FirstNet from the requirements of FOIA.”

The plaintiffs claim they were not provided with the opportunity to appeal their September 7 FOIA rejection.

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