VTDigger Seeks to Revive FOIA Challenge Against FirstNet

reinstating the appeal, said the local news organization’s motion (in Pacer). In an accompanying brief (in Pacer) filed over the weekend, the appellant asked the 2nd Circuit to reverse and remand rulings by the U.S. District Court in Burlington, Vermont, which found FirstNet is exempt from FOIA requests, the Commerce Department and NTIA were right to refuse to search for responsive records, and VTDigger lacked standing to claim the government violated Section 208 of the 2002 E-Government Act by failing to conduct and publish a privacy impact assessment for the FirstNet state plan portal accessed by state officials. Agencies generally may not refuse to process FOIA requests, VTDigger said. The government cited an exemption for FirstNet in the Middle Class Tax Relief and Job Creation Act, but VTDigger said that covered Administrative Procedure Act rulemaking requirements but not specifically FOIA, even though it falls under APA. Also, DOC and NTIA didn’t satisfy their burden to prove searching for records would be futile, the news organization said. The agencies’ decisions not to search “were additionally unreasonable” because they referred requests to FirstNet while believing it wasn’t subject to FOIA, it said. “They refused to search for records with full knowledge that, under their interpretation of the law, the only records that Appellants could possibly obtain through FOIA would be in their offices.” VTDigger properly challenged FirstNet for not doing a privacy impact assessment, it said. “Appellants do not need to have their information collected to have standing to bring this case.”