Federal government makes case to refute argument that Fitzgerald e-mails should be released

Whether or not FirstNet board member Paul Fitzgerald is deemed to be a federal employee, it is in the public interest not to disclose any FirstNet-related e-mails sent or received from his work e-mail address, federal attorneys argued in their most recent filing before a federal district court.

Fitzgerald is the sheriff of Story County, Iowa, an elected position. 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 are not subject to state open-meetings law.

Earlier this month, Story County submitted a brief arguing that the e-mails could not be considered federal records, because it would be illegal for Fitzgerald to be a federal employee under the Hatch Act. The law prohibits federal employees from holding local elected positions 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 Democrat.

Federal attorneys argued that there are administrative exceptions to the Hatch Act for “special government employees”  and  persons employed by the federal government “on an irregular or occasional basis.” Fitzgerald’s service to the FirstNet board qualifies under either exception, federal attorneys argued.