Fitzgerald cites confidential nature of e-mails in legal declaration

Information was provided to FirstNet board member Paul Fitzgerald in certain FirstNet-related e-mails because those communicating with him believed that the e-mails would be confidential, according to a legal declaration provided by Fitzgerald. This includes some information that was provided under non-disclosure agreements.

Fitzgerald provided the declaration in August as part of the federal government’s request to a U.S. district court to block the release of FirstNet-related e-mails sent and received by Fitzgerald on his e-mail account for Story County, Iowa, where he has served as sheriff for the past two decades. The declaration was a supporting document in the federal government’s motion for a temporary restraining order to prevent 63 Fitzgerald e-mails from being released to Politico reporter Tony Romm under the state of Iowa’s open-record law.

“It is my understanding and belief that most, if not all, persons with whom I communicated regarding FirstNet matters by e-mail between March 1 and June 30 of 2013, believed those communications to be confidential,” Fitzgerald stated in the declaration, which Urgent Communications obtained this week. “On at least two occasions, I was requested to—and did—enter into non-disclosure agreements with those with whom I was seeking information and advice.

“From my conversations and exchanges with these individuals and consultants, I know they would not share or provide their information, thoughts, opinions and insights with me regarding FirstNet, if they understood these communications would be made public.”

Fitzgerald made a similar statement regarding his e-mail exchanges with other FirstNet officials.

“There are also communications and exchanges with other members of the FirstNet board,” the declaration states. “I consider these to be internal deliberations and thought processes of the board. Many of these are expressions of frank and open opinions about the board deliberations. If these communications were to be disclosed, they could slow our progress in implementing the first-responder network, limit future frank and open deliberations and expose pre-decisional information that will damage relationships with partners, state entities and stakeholders.”

FirstNet Secretary Uzoma Onyeije also provided a legal declaration in support of the temporary restraining order, which was granted by the U.S. district court in southern Iowa. Onyeije’s declaration notes that several FirstNet board members opted to use e-mail accounts other than the ones provided by the National Telecommunications and Information Administration (NTIA) until June 2013.

If a court allows Fitzgerald’s e-mails to be released, it will create problems for FirstNet, according to Onyeije.

“To the extent that communications at issue here are disclosed publicly, the disclosure will have a chilling effect on frank and open communications among the board members, between the board members and their staff, between the board members and other federal staff, and between the board members and the board’s public-safety constituents,” the Onyeije declaration states.

“Such a result is inconsistent with Congressional intent. While Congress has imposed an openness obligation on FirstNet that requires all of its board and committee meetings be open to the public, no such requirement exists for FirstNet’s internal deliberations. Congress wisely limited the scope of its openness requirements, because premature and widespread disclosure of FirstNet’s internal work product will significantly hamper the ability of FirstNet to perform its duties as directed by the Middle Class Tax Relief and Job Creation Act of 2012.”

Fitzgerald has been a focal point of attention on the FirstNet board since April 23, when he made several allegations that the board was conducting business improperly and that some board members had ethical issues. An investigation by an internal special review committee into the openness and transparency allegations found no wrongdoing by FirstNet. A second investigation into Fitzgerald’s procurement and conflict-of-interest claims recently was referred to the U.S. Department of Commerce inspector general.

Story County attorneys have argued that the Fitzgerald e-mails should be released under Iowa open-records law, because they are stored in the Story County e-mail system, and the U.S. government did not seek any protection in advance of Romm’s request. Federal attorneys have claimed that the FirstNet content of the e-mails determine that they are federal property, regardless who owns the server where they are stored.

Because of the temporary restraining order and a subsequent preliminary injunction, the Fitzgerald e-mails have not been released. On Sept. 30, Story County filed a motion to dismiss the injunction, and the federal government is due to submit a response next week.