Story County attempts to undermine federal case for not disclosing Fitzgerald e-mails

“[Fitzgerald] cannot legally be both a federal employee and a partisan elected county sheriff,” the Story County argument states. “The Hatch Act has no authority to remove the sheriff from his partisan elected county office in Iowa. Since the sheriff is currently serving his term as a partisan elected county sheriff, he cannot be a federal employee and therefore, the government cannot make a legitimate claim for a property interest in the sheriff’s county e-mails.”

There is legal precedent that would require Story County to preserve Fitzgerald’s FirstNet-related e-mails, if the federal government had requested the county to do so. But no such request was made, and Story County cannot be presumed to know that the federal government would claim a property interest in Fitzgerald’s e-mails, according to the Story County filing.

“It would not be reasonable for Story County, Iowa, to assume that [Fitzgerald] was corresponding on county email as a federal employee, since the sheriff's federal employment status is prohibited by the Hatch Act,” the Story County filing states. “Therefore, the federal government cannot meet the ‘appropriate for preservation’ aspect of the definition of a federal record.

“Story County, Iowa cannot see how e-mails sent on a county e-mail system by a partisan elected county official meet the definition of a federal record appropriate for preservation, when it is illegal for the partisan elected official to be a federal employee.”

If the federal court agrees with the Story County argument, Fitzgerald’s e-mails could be made public. Without disclosing the specific details of the 63 e-mails, federal attorneys have described them as “discussions of legal advice, proposed budgets, draft board resolutions and minutes, and other internal deliberations,” according to filings with the court.

“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,” federal attorneys have stated.

Federal attorneys are scheduled to respond to the Story County filing on Jan. 24, according to the federal-court docket sheet for the case.