Fitzgerald released e-mails contrary to his county’s directives, filing says

FirstNet board member and Story County (Iowa) Sheriff Paul Fitzgerald released FirstNet-related e-mail documents to the U.S. Department of Commerce (DOC) prior to their scheduled release to a media outlet, despite the fact that the Story County officials had determined that the e-mails should be released to both entities simultaneously, according to a Story County legal filing.

Story County filed a motion to dismiss federal attorneys’ request for a ruling that permanently would block public release of Fitzgerald’s e-mails related to FirstNet and wireless equipment manufacturers that were sent from his Story County e-mail address and stored in the Story County data system. The e-mails in question were sent and received from March 1 to June 30—the period when Fitzgerald may have discussed his decision to allege during FirstNet’s April 23 meeting that the FirstNet board was not acting transparently and that some board members had conflicts of interest. 

Federal attorneys claim that the law creating FirstNet exempts the body from disclosure laws, so Fitzgerald’s e-mails related to FirstNet are not subject to freedom-of-information and open-records statutes. But the Story County board of supervisors voted on Aug. 13 to release 63 e-mails from Fitzgerald related to FirstNet to Politico reporter Tony Romm, noting that the e-mails were in the county’s data system and subject to the state of Iowa’s open-records law.

Upon learning of Story County’s intention to release the e-mails, federal attorneys asked for copies of the e-mails to determine their content before they were scheduled to be released to Romm on the morning of Aug. 19. Story County expressed willingness to release the Fitzgerald e-mails to the federal government—and later did so—but only at the same time as the e-mails were released to Romm, according to the motion.

“The rationale behind Story County, Iowa’s decision was that there appeared to be no distinction between releasing the information to the Department of Commerce and releasing the information to Politico,” according to a legal memorandum supporting the motion to dismiss written by Story County Attorney Stephen Holmes.

But federal attorneys did secure the e-mails prior to their scheduled release to Romm—from Fitzgerald, according to the Story County filing.

“After Story County, Iowa, declined to provide copies of the subject e-mails to the Department of Commerce, Sheriff Paul Fitzgerald represented to Jessica A. Reynolds, assistant Story County attorney, that he was intending to provide and did—independently of the board of supervisors—provide a CD of all of his e-mails for the time period of March 1, 2013, [to] June 30, 2013, containing the 7,107 e-mails, as well as the printed-off copies of the 63 e-mails (which Story County, Iowa, found to be responsive to Politico’s limited request) to the Department of Commerce,” the Story County filing states. “Prior to the release of the documents, the sheriff informed Story County, Iowa, that he had sought legal advice.”

The Story County filing further references Fitzgerald’s decision in a footnote.

“To clarify, after Story County, Iowa, refused the United States of America’s request to turn over the subject e-mails [prior to releasing them to Politico], Sheriff Paul Fitzgerald turned over the subject e-mails,” the filing states. “Sheriff Fitzgerald acted independently and not on behalf of Story County, Iowa, as he is an elected official on the same level of government as the board of supervisors.”

Aided by discovering the content of the Fitzgerald e-mails early, federal attorneys were able to secure a two-week restraining order that precented the e-mails from being publicly released. On Sept. 3, the court granted a preliminary injunction to halt the release of the e-mails until both sides submitted filings. Story County filed a motion to dismiss on Sept. 30, and the federal government was supposed to respond by Oct. 15, but the court granted the federal government an additional 30 days to submit its filing in the wake of the federal-government shutdown earlier this month.