Urgent Matters

Congress unwittingly created FirstNet e-mail mess, and needs to fix it

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At the heart of the controversy surrounding efforts to release FirstNet board member Paul Fitzgerald's e-mails related to the deployment of a nationwide broadband network for first responders is an apparent discrepancy in the law Congress passed that created FirstNet. Given this, federal lawmakers should revisit the matter and clarify their intent, so FirstNet can proceed with its business.

Much angst has been generated by the battle over whether to release FirstNet-related e-mails sent and received by board member Paul Fitzgerald, whose day job is to serve Story County, Iowa, as its sheriff. Because the e-mails in question were received or written using Fitzgerald’s work e-mail account, Story County officials believe that they belong to the county and, as such, are subject to the state’s open-records laws.

Meanwhile, federal attorneys argue that, because the e-mails are about FirstNet and its business, they belong to FirstNet and thus are protected by language contained in the federal legislation that created the entity and tasked it with building a nationwide broadband communications network for first responders. As I understand things, the language says that FirstNet is exempt from disclosure requests such as the one filed by Politico reporter Tony Romm. But the language also instructs FirstNet to conduct its business in an open and transparent matter.

That’s like trying to have your cake and eating it too—it can’t be done.

In the short term, the battle over Fitzgerald’s e-mails has an interesting side issue. It has been reported that the information contained in some of the e-mails was offered under nondisclosure agreements. But while it might seem reasonable to think that the information contained in those e-mails would be protected if Fitzgerald indeed signed a nondisclosure agreement—and that those offering the information would be within their legal rights to expect confidentiality—it has been suggested to me that one cannot usurp the law by signing one. If that's true, then any nondisclosure agreements signed by Fitzgerald's sources may be irrelevant. 

Thinking more long term, Congress needs to address the question of what information FirstNet should or shouldn’t have to make available to the public as soon as possible. Congress created this incongruity and needs to clarify it. But the way to do that is not to strip FirstNet of all protections regarding the machinations of developing this vital network. Indeed, FirstNet board members and staff need the freedom to close the doors, roll up their sleeves and engage in bare-knuckle fist-fighting--if necessary--to hash out all of the things they’re going to need to hash out.

Think of it this way.  A colleague with whom I was discussing this matter last week asked me the following question: What’s the most boring meeting on Earth? The answer, he said, is the monthly meeting of the Federal Communications Commission, because everything about that meeting is scripted. And that’s because all of the decision-making occurs prior to the commission meeting, outside the purview of the public and media.

Congress operates in the same fashion. When lawmakers enter the Senate or House chambers, their debate and subsequent votes are captured by CSPAN and the network news. But all of the real work and battles ensue in the committees and subcommittees, particularly conference committees. I am certain that it is contentious and even nasty at times, but that sort of unbridled debate is essential to good outcomes. The process would be far less effective if lawmakers and their staffs had to make the public and media aware of every word spoken, as well as every note, memorandum and e-mail written.

It needs to work the same way regarding FirstNet. Its board members and staff need to be given latitude to do their jobs. But they also shouldn’t be given blanket immunity. There’s a fine line between “too much information” and “not enough,” and the trick will be in determining where the line should be placed.

The best metaphor I can come up with for this is the process by which sausage is made. You don’t want to be in the room where it’s all going down—unless you have a proclivity for things that are revolting—but you want some process in place that ensures that what comes out of that room is safe to eat.

Establishing that process might be an unenviable task, but there is no doubt in my mind that it is one that Congress needs to tackle—sooner rather than later. People need to be able to trust FirstNet, if it is to have any hope of successfully completing its mission. And the only way to establish that trust is for people to not only know and understand FirstNet’s decisions, but also how those decisions were reached. That’s going to require some level of visibility that doesn’t seem to exist today.

Discuss this Blog Entry 2

on Nov 13, 2013

Public disclosure is often unpleasant for public officials. Most if not all state and local government officials have learned to live with and operate within state public disclosure laws that have been well defined about what needs to be disclosed and when. Certainly, bid evaluation processes, some contract negotiations, real estate searches, etc. and others need to be done with some privileged communications and meetings. However, once the process is completed, the full process should be open to public scrutiny. There are likely more bad outcomes from secrecy in these kinds of processes than from too much openness. There is a lot of money at stake here and the process should be more open than not.

Anonymous (not verified)
on Nov 14, 2013

That's silly to try and suggest Congress had anything to do with this purely ""administrative" mess that the US Dept. of Commerce, NTIA & FirstNet created for themselves here. To the extent that Congress created FirstNet within NTIA instead of establishing it as a truly independent entity that the Senate, the Obama Administration and the Public Safety Alliance backed in S.911 with creation of the Public Safety Broadband Corporation. Still, establishing an internal email address for all staff, contractors and Board Members is "business 101" and "public sector administration 101." Its Commerce, NTIA and FirstNet's mess to clean up, just as some of the contracting shortcuts and cronyism is theirs to clean up and deal with, too.

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Donny Jackson is editor of Urgent Communications magazine. Before joining UC in 2002, he covered telecommunications for four years as a freelance writer and as news editor for Telephony magazine....
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