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

FirstNet-related emails from Paul Fitzgerald—a FirstNet board member and the elected sheriff of Story County, Iowa—that were sent and received from his Story County e-mail account are the property of federal government and cannot be released to the public by the county, according to a federal court ruling.

“The question before this court was a very narrow one: Do the subject emails belong to the United States or to Story County?” according to the July 3 opinion written by James Gritzner, chief judge for the U.S. District Court for the Southern District of Iowa. “The evidence and applicable law demonstrate that they are federal records that belong to the United States.

“Public access to those records is a question for another day and another forum.”

Under the law passed by Congress in 2012 that created FirstNet, FirstNet is exempt from disclosure laws such as the Freedom of Information Act (FOIA), so the federal government has no obligation to release the subject e-mails, which were requested by Politico reporter Tony Romm last summer.

"FirstNet is pleased with the court's decision," according to a FirstNet spokesman.

Theoretically, Story County board of supervisors could appeal the decision, but “I think it’s highly unlikely,” according to Jessica Reynolds, first assistant Story County attorney.

“Basically, the county was put in an unenviable position of having a state law and federal law conflict,” Reynolds said during an interview with IWCE’s Urgent Communications. “So in the protection of our client [Story County], we wanted to make sure that they were protected against any findings of state-law open-records violations. The federal court order protects our clients from any kind of liability from that, so that’s helpful to us.

“This is a novel issue, and so our board acted in the spirit of transparency and openness in following Iowa law, and now they [board members] are protected from liability.”

In arguments before the court, Story County Attorney Stephen Holmes claimed that Story County should be able to release 63 FirstNet-related e-mails sent and received by Fitzgerald at his county e-mail account, because they were housed in the Story County e-mail system and should be subject to Iowa open-records law.

But the federal district court ruled that the content of the e-mails—not where they were they were stored—determines ownership under the law.

“It is undisputed herein that Politico would not be entitled to access Sheriff Fitzgerald’s FirstNet board e-mails, had they been sent and/or received via Sheriff Fitzgerald’s FirstNet Board email account,” according to the court opinion. “Just as Sheriff Fitzgerald’s use of his Story County email account to access FirstNet Board emails did not transform the nature of those communications, neither did that use transform Politico’s lack of access to them.

“The subject e-mails were not ‘produced by or originated from’ Sheriff Fitzgerald’s role as Story County sheriff, nor were they held by Sheriff Fitzgerald in his official capacity as Story County sheriff.  The subject e-mails are federal records and not subject to Iowa’s Public Records Act.”

In addition, Story County made several other arguments why the Fitzgerald e-mails should be considered as the property of Story County, including the notion that the Hatch Act prohibits Fitzgerald serving as a federal employee—U.S. Department of Commerce attorney described Fitzgerald and other FirstNet members as “special government employees”—and simultaneously as the elected sheriff of Story County.