Federal government seeks custody of Fitzgerald e-mails

Claiming that Paul Fitzgerald’s e-mails associated with his role as a FirstNet board member are federal documents, U.S. government attorneys are seeking a summary judgment to block efforts by Story County, Iowa—where Fitzgerald is the longtime sheriff—to release FirstNet-related e-mails sent and received on the Story County system.

Story County has argued that 63 FirstNet-related e-mails tied to Fitzgerald’s county e-mail address should be subject to Iowa’s open-records law, because they are stored in the Story County data system. But federal attorneys cite Iowa case law in claiming that the location of the e-mail is irrelevant; if Fitzgerald sent or received e-mails in his capacity as a “special government employee” serving as a FirstNet board member, those e-mails are federal documents, according to a Nov. 15 filing. 

“This is not a case in which the United States is seeking to restrict any rights of the county to disclose its own records,” the filing states. “Instead, it is a case in which the United States is seeking to enforce its property rights in the records.”

In making the argument as to why Fitzgerald’s e-mails are not subject to a Congressional mandate that FirstNet be open and transparent in its procurement, federal attorneys provided hints regarding the content of at least some of the Fitzgerald e-mails.

“The e-mails at issue are not competitive requests by the board to the private sector for the purpose of building and operating the network,” the filing states. “Rather, the e-mails reflect internal communications among FirstNet board members and/or with FirstNet employees.

“They include discussions of legal advice, proposed budgets, draft board resolutions and minutes, and other internal deliberations,” the filing continues. “While some of these internal communications touch upon prospective procurement plans by FirstNet, those plans are not final, competitive requests to the private sector but internal, pre-decisional sensitive information which would prematurely reveal the agency’s proposed strategy, budget or schedule for acquiring goods and services.”

The federal filing does not state whether the Fitzgerald e-mails would be released if the court rules in favor of the U.S. government. However, the filing does reiterate the fact that Congress exempted FirstNet from the Freedom of Information Act when it created the organization last year.

Federal attorneys made the filing in response to Story County’s motion to dismiss the case, which would allow the county to release the e-mails to Politico reporter Tony Romm, who made the request under Iowa’s open-records law. In the motion to dismiss, Story County claimed that the law passed by Congress exempting FirstNet from disclosure laws violated the First Amendment, but federal attorneys cited case law to refute this notion.

“It is for Congress to determine the extent of access to government documents; the First Amendment does not do so,’” the filing states, quoting from a U.S. circuit-court ruling before making an independent argument.

“Here, Congress has not provided the public with a general right of access to FirstNet documents. Instead, it has explicitly provided that FirstNet is not subject to the [Freedom of Information Act].”