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Whitaker v. Department of Commerce

United States District Court, D. Vermont

December 20, 2017

STEPHEN WHITAKER and DAVID GRAM, Plaintiffs,
v.
DEPARTMENT OF COMMERCE, Defendant.

          DECISION ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT & DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND MOTION FOR SUMMARY JUDGMENT (DOCS. 10 & 15)

          GEOFFREY W. CRAWFORD, JUDGE UNITED STATES DISTRICT COURT

         This matter came before the court on December 15, 2017 for hearing on pending cross-motions for summary judgment and the Defendant's motion to dismiss. Attorney Kel McClanahan of National Security Counselors appeared for the Plaintiffs, and Attorney Marcia Sowles of the United States Department of Justice and Assistant United States Attorney Nikolas Kerest appeared for the Defendant. For the reasons set forth herein, the court denies the Plaintiffs motion for partial summary judgment as to Counts 16 and 17 of the complaint, grants the Defendant's motion to dismiss as to Counts 1-5 and 16, grants the Defendant's motion for summary judgment as to Counts 6-15 and 17, and reserves decision on summary judgment as to Count 18 pending supplemental briefing from the parties.

         BACKGROUND

         This lawsuit arises out of requests for documents pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff Stephen Whitaker is a citizen of Vermont, and Plaintiff David Gram is a reporter for VTDigger. The Plaintiffs, through counsel, submitted FOIA requests to the First Responder Network Authority ("FirstNet"), the National Telecommunications and Information Administration ("NTIA"), and the Department of Commerce ("DOC").

         The FOIA requests at issue concerned the operations of FirstNet, which is an independent authority within the NTIA, which is itself an agency of the Department of Commerce ("DOC"). - FirstNet was created by Congress in 2012 at the recommendation of the 9/11 Commission to oversee the development of a national wireless broadband network for emergency first responders. FirstNet issued requests for proposals to build and operate the national network, and on March 30, 2017, the bid was awarded to AT&T. FirstNet and AT&T then created an online system called the State Plans Portal ("the Portal") in order to meet FirstNet's statutory obligation to provide state governments with information about the proposal so each state can decide, with this information in hand, whether to opt into the national network or construct its own alternative radio access network. See generally M U.S.C. § 1442(e). On June 19, 2017, FirstNet released plans for the national network through the Portal, and gave the state governments 45 days to review the plan and provide feedback. On September 29, 2017, the 90-day opt-in timeline began. State governments are required to decide to opt in or out by December 28, 2017. States that opt out will receive federal funding to assist in building their alternative radio access networks.

         The present litigation concerns six FOIA requests submitted by the Plaintiffs between September 1 and October 5, 2017. The first three requests were submitted to FirstNet, the NTIA, and the DOC on September 1, 2017. They sought user comments submitted to the Portal, communications the agencies considered to be agreements to opt into the national network, and contracts, agreements, memoranda of understanding with AT&T. The fourth and fifth requests were submitted to FirstNet, the NTIA, and the DOC on September 25, 2017. They sought copies of the plans provided to the states and associated correspondence and records about the terms of use of the Portal. The sixth request was submitted to FirstNet and the NTIA, but not the DOC, on October 5, 2017. It sought correspondence from states affirmatively opting out of the national network.

         FirstNet responded to each request with a letter stating its position that it is exempt from the requirements of FOIA by operation of a provision of its enabling statute, 47 U.S.C. § 1426(d), and thus had not conducted any search for responsive documents. The NTIA responded to the September 25 request for records regarding the terms of use of the Portal by providing five unredacted documents. The NTIA's responses to all of the other requests were letters stating that, because any responsive records would be FirstNet records, the requests would be transferred to FirstNet. The DOC responded to each request with a letter stating that any responsive records would be FirstNet records, and that the request would be transferred to FirstNet.

         Additionally, on September 1, 2017, the Plaintiffs, through counsel, submitted a FOIA request to the DOC for all privacy impact assessments created for systems affiliated with FirstNet. The DOC initially responded in the same way it responded to all other requests, but in further correspondence with the Plaintiffs' counsel, it directed the Plaintiffs' counsel to a privacy impact assessment for "the NTIA-035 FirstNet General Support System" available on the DOC's public website.

         On October 6, 2017, the Plaintiffs commenced the present litigation, and the operative complaint alleges eighteen causes of actions. Counts 1-5 allege improper denials of records in violation of FOIA by FirstNet in its responses to the Plaintiffs' requests. Counts 6-10 allege improper records denials by the NTIA. Counts 11-15 allege improper records denials by the DOC. Count 16 alleges that FirstNet's interpretation of a provision of its enabling statute, 47 U.S.C. § 1426(d), as exempting it from FOIA constitutes a policy or practice in violation of FOIA, and seeks declaratory and injunctive relief. Count 17 alleges that the NTIA and DOC have a policy or practice of referring to FirstNet all document requests related to FirstNet, and alleges that this practice is a FOIA violation. The Plaintiffs seek declaratory and injunctive relief. Count 18 alleges that the DOC failed to complete an appropriate privacy impact assessment, as required by the E-Government Act of 2002, 44 U.S.C. § 3501 note, on the effect of FirstNet on the privacy of personal information gathered via FirstNet. Count 18 requests an injunction forbidding FirstNet from collecting personal information until a proper privacy impact assessment is complete.

         In light of the December 28, 2017 FirstNet opt-in deadline and the Plaintiffs' representations that the requests at issue were made in order to obtain documents to be used in the political process to influence the opt-in decisions of the states, this court granted expedited consideration of this matter. On December 15, 2017, the court heard argument on the dispositive motions.

         DISCUSSION

         I. Counts 1-5 and 16

         The disposition of Counts 1-5 and 16 on the Defendant's motion to dismiss rests on an issue of statutory interpretation. Section 1426(d) of Title 47 provides:

(d) Exemption from certain laws. Any action taken or decisions made by the First Responder Network Authority shall be exempt from the requirements of-
(1) section 3506 of title 44 (commonly referred to as the Paperwork Reduction Act);
(2) chapter 5 of title 5 (commonly referred to as the Administrative ...

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