2nd Circuit Affirms Dismissal of VTDigger FirstNet FOIA Case

at FirstNet responsiveness to FOIA requests and a claim the government violated 2002 E-Government Act Section 208 by failing to do and publish a privacy impact assessment for the FirstNet state plan portal (see 1807300058). The 2nd Circuit heard oral argument in September (see 1909030025). The district court “did not err in concluding” FirstNet “is not subject to FOIA” and that “an agency need not search for records if it has reasonably determined that a search would be futile,” Judges Susan Carney, Raymond Lohier and John Walker ruled Friday (in Pacer). NTIA and Commerce, which aren’t exempt from FOIA, “adequately responded to plaintiffs’ FOIA requests. Based on sworn declarations from NTIA and DOC officials explaining why the agency would not have responsive records, the district court determined that the agency did not violate FOIA by declining to conduct a search.” VTDigger and other plaintiffs in the case are “evaluating our position” on the lawsuit and are “deciding how to move forward,” said National Security Counselors lawyer Kal McClanahan, who represents the plaintiffs, in an interview. The 2nd Circuit’s ruling was “not a good decision” from the perspective of transparency or privacy law given it turned the standard for FOIA cases “on its head.” The plaintiffs “will be taking steps in the future to see what can be done about it,” McClanahan said.