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

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.