Court rules that federal government owns Fitzgerald e-mails about FirstNet; appeal ‘highly unlikely’

However, the federal district court ruled that the Hatch Act question was a “collateral issue” to the case.

“There is no question that the public interest, as specifically contemplated by Congress when it created FirstNet, would be harmed, if this court were to strip the subject emails of their characterization as federal records, even if there had been a Hatch Act violation due to Sheriff Fitzgerald’s appointment to the FirstNet Board,” the court opinion states.

“Congress exempted FirstNet from operation of the federal Freedom of Information Act specifically to protect the

confidentiality of records such as those at issue in this litigation. Clearly, this purpose would be frustrated—and the public interest thereby harmed—were the court to reach the result asked for by Story County.”

Fitzgerald used his Story County e-mail account to send and receive e-mails regarding FirstNet business that he believed to be confidential, including correspondence conducted under non-disclosure agreements. Story County planned to release the 63 FirstNet-related e-mails last summer under a state open-records request, but federal attorneys secured an injunction to block this action, noting that the e-mails are federal records that were not subject to state open-meetings law.

Early this year, Story County submitted a brief arguing that the e-mails could be considered federal records, because it would be illegal for Fitzgerald to be a federal employee under the Hatch Act, which prohibits federal employees from holding an elected local office while representing a party with a candidate in the most recent presidential election. Fitzgerald was re-elected as Story County sheriff in November 2012—less than three months after being appointed to FirstNet—while running as a member of the Democratic Party.

Oral arguments in the case were heard on March 5.

Fitzgerald created a firestorm on the FirstNet board in April 2013, when he alleged that the board was hiring improperly, not informing all board members fully, that public-safety input into the network design of the FirstNet was not being heard, and that the FirstNet system was being designed by board members with “possible conflicts of interest.”

Last fall, an internal review committee found that the FirstNet board had acted appropriately in its openness and decision-making practices. The conflict-of-interest questions were turned over to the U.S. Department of Commerce Inspector General for consideration, but no findings have been announced yet.