Commerce Department Urges 2nd Circuit to Reject Appeal in FirstNet FOIA Case

Local news publication VTDigger seeks appeal of the decision by the U.S. District Court in Burlington, Vermont. “The district court correctly concluded that plaintiffs’ challenge to FirstNet’s response to its FOIA requests should be dismissed because Congress exempted FirstNet from the requirements of FOIA,” Commerce said. “Plaintiffs offer no basis for disregarding the statute’s plain text.” The court was right to conclude that Commerce and NTIA “reasonably concluded, and adequately explained, that they were unlikely to have any responsive records to plaintiffs’ FOIA requests based on the specific nature of the records sought,” the department said. “Where the agency can reasonably determine from the face of the specific request that it is unlikely to possess any responsive records, the ‘method[] which can be reasonably expected to produce the information requested,’ … may be no search at all.” The 2nd Circuit also should affirm the lower court’s finding that 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, the department said. “Plaintiffs have not explained why the failure to make a privacy impact assessment public would ‘present a material risk of harm to the underlying concrete interest Congress sought to protect’ in Section 208,” it said. “Even assuming arguendo that plaintiffs have standing to bring a Section 208 claim, there is no basis to remand the claim for additional review because the Nationwide Public Safety Broadband Network is not a government-owned and operated network and thus, is not subject to” Section 208 requirements.