United States v. Story Cnty.
| Citation | 28 F.Supp.3d 861 |
| Decision Date | 03 July 2014 |
| Docket Number | No. 4:13–cv–00360–JEG.,4:13–cv–00360–JEG. |
| Parties | UNITED STATES of America, Plaintiff, v. STORY COUNTY, IOWA, by and through its Board of Supervisors, Defendant. |
| Court | U.S. District Court — Southern District of Iowa |
UNITED STATES of America, Plaintiff,
v.
STORY COUNTY, IOWA, by and through its Board of Supervisors, Defendant.
No. 4:13–cv–00360–JEG.
United States District Court, S.D. Iowa, Central Division.
Signed July 3, 2014
United States' motion granted; county's motion denied.
[28 F.Supp.3d 863]
William C. Purdy, U.S. Attorney's Office, Des Moines, IA, Marcia Kay Sowles, John Russell Tyler, U.S. Dept. of Justice–Civil Division, Washington, DC, for Plaintiff.
Stephen Harris Holmes, Story County Attorney, Nevada, IA, for Defendant.
ORDER
JAMES E. GRITZNER, Chief Judge.
Before the Court is a Motion to Dismiss brought by Defendant Story County, Iowa (Story County) and a Motion for Summary Judgment brought by Plaintiff United States of America (the United States). Both Motions are resisted. The Court held a hearing on the Motions on March 5, 2014. Department of Justice Attorney Marcia Sowles, Department of Commerce Attorney Russell Craig, and Assistant U.S. Attorney William Purdy were present for the United States. Story County Attorney Stephen Holmes was present for Story County. The Motions are ready for disposition. The following facts are not in material dispute.
I. FACTUAL AND PROCEDURAL BACKGROUNDThe First Responders Network Authority (FirstNet) is an independent authority within the National Telecommunications Information Administration (NTIA), an agency of the United States Department of
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Commerce. See 47 U.S.C. § 1424(a). The Middle Class Job Creation and Tax Relief Act of 2012 (the Act), 47 U.S.C. § 1401 et seq., authorized and appropriated $7 billion available through fiscal year 2022 to FirstNet to build, deploy and operate the nationwide public safety broadband network. Id. § 1457(b)(3). The Act established the Public Safety Trust Fund (the Fund), into which were directed the auction proceeds from certain spectrum auctions conducted by the Federal Communications Commission (FCC) that were then made available for a variety of programs, including the $7 billion for FirstNet. Id. § 309(j)(8). Until such time as spectrum auction proceeds are deposited into the Fund, however, NTIA was authorized to borrow up to $2 billion from the Treasury to fund FirstNet's initial activities. Id. § 1427(a).
Among the objectives of FirstNet is to “ensure the building, deployment, and operation of the nationwide public safety broadband network,” to “ensure the safety, security, and resiliency of the network, including requirements for protecting and monitoring the network to protect against cyberattack,” and to “address special considerations for areas or regions with unique homeland security or national security needs.” Id. § 1426(b)(1)-(2). The FirstNet Board is comprised of the Secretary of Homeland Security, the U.S. Attorney General, the Director of the Office of Management and Budget, and twelve individuals appointed by the Secretary of Commerce.
On August 20, 2012, Story County Sheriff Paul Fitzgerald (Sheriff Fitzgerald) was appointed to the FirstNet Board by the then Acting Secretary of Commerce. At the time of his appointment to FirstNet, Sheriff Fitzgerald was the Democratic candidate for re-election as Story County Sheriff and was re-elected in November 2012. When performing his FirstNet duties and activities, Sheriff Fitzgerald receives pay from the United States for his time spent in performing his duties on behalf of FirstNet and compensation for associated travel expenses.1
In his capacity as a FirstNet Board member, Sheriff Fitzgerald communicates (including by email) with other FirstNet Board members as well as FirstNet officials and employees regarding FirstNet activities and plans. These communications include discussion of proposed budgets, draft Board resolutions and minutes, prospective procurement plans, legal advice, other internal and additional communications.2 Until June 2013, Sheriff Fitzgerald received and sent some communications in his capacity as a FirstNet Board member from his Story County email account, PFitzgerald@ storycounty. com.
On July 29, 2013, a request was made to Story County by Mr. Tony Romm (Romm), a reporter for the political news publication Politico, for “all emails sent and received by Sheriff Paul Fitzgerald over the period between March 1 and June 30.” Romm Email of July 29, 2013, Ex. 1 to Defs.' Mot. Dismiss, ECF No. 7–2. On August 1, 2013, Romm amended his request
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to include “emails the sheriff sent and received between March 1 and June 30 on any matters surrounding his involvement with FirstNet, his conversations with wireless companies or device makers, or on the topic of wireless communications generally.” Romm Email of Aug. 1, 2013, Ex. 2 to Defs.' Mot. Dismiss, ECF No. 7–2.
Sheriff Fitzgerald became aware of this request, informed Kathy Smith, Chief Counsel of NTIA (Smith), and forwarded to her a copy of Romm's modified request. Upon being informed of Romm's request, Smith contacted Iowa Deputy Attorney General Julie Pottorff (Pottorff) and explained Sheriff Fitzgerald's position as a FirstNet Board member and the federal interest in communications by Sheriff Fitzgerald as a member of that Board. On August 8, 2013, Pottorff contacted Assistant Story County Attorney Jessica Reynolds (Reynolds) and, confirming an earlier discussion, stated that Sheriff Fitzgerald's email communications as a member of the FirstNet Board were federal records “and access should be determined under federal law.” Pottorff Email of Aug. 8, 2013, Gov't Mot. TRO, ECF No. 2–4. Pottorff further advised Reynolds that it was also the view of the Department of Commerce that these were federal records. Pottorff requested that Reynolds turn the documents over to Smith to “shift the emails to the federal attorneys and allow them to process Romm's request under federal law.” Id.
On August 12, 2013, Pottorff reiterated to Reynolds that federal counsel was willing “to work on the disclosure issues at the federal level” and that she thought it was “extremely unlikely that the county would be held in violation of its disclosure obligation by transferring these issues at the request of the Attorney General's office to the Department of Commerce where Sheriff Fitzgerald's appointment originates” and hoped that “the county appreciates it is in everyone's interest to have the disclosure of emails related to the federal position determined at the federal level.” Pottorff Email of Aug. 12, 2013, Gov't Mot. TRO, ECF No. 2–4. The United States did not offer to indemnify Story County if Story County was sued 3 and found liable for a violation of Iowa's Open Records Act, Iowa Code ch. 22.4
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On August 13, 2013, NTIA Deputy Chief Counsel Milton Brown (Brown) contacted Reynolds requesting an opportunity to discuss the matter. In response, Reynolds emailed Brown and Pottorff advising, “Today the Story County Board of Supervisors voted to release the requested records to Politico at 9:00 a.m. on Monday, August 19, 2013.” Reynolds Email of Aug. 13, 2013, Gov't Mot. TRO, ECF No. 2–4. Brown then requested copies of the subject emails from Reynolds, to which Reynolds responded on August 14th, “We will be happy to provide copies to you on Monday at 9:00 a.m. when we release the documents to Politico but not sooner.” Brown Email of Aug. 13, 2013, Gov't Mot. TRO, ECF No. 2–4.
On August 16, 2013, the U.S. Department of Justice, by Acting Associate Attorney General Elizabeth G. Taylor (Taylor), wrote to Story County Attorney Stephen H. Holmes (Holmes) regarding Story County's decision to disclose the email communications. Taylor stated that “Sheriff Fitzgerald was at all times acting as a special federal employee and a member of the FirstNet Board” and, consequently, that “Sheriff Fitzgerald's emails are the property of the federal government notwithstanding the fact that Sheriff Fitzgerald used the Story County email domain when engaging in these communications.” Taylor letter of Aug. 16, 2013, Compl.-Ex. 1, ECF No. 1–1. Taylor, therefore, respectfully requested that the County Board of Supervisors reconsider their decision to release the records. Id.
On August 20, 2013, the United States filed this declaratory judgment action asking for injunctive relief against Story County, by and through its Board of Supervisors, and requesting an order declaring that the FirstNet records are the property of the United States expressly exempted from the disclosure requirements of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, see 47 U.S.C. § 1426(d)(2),5 and enjoining Story County from publicly releasing those records. Along with the Complaint, the United States filed a Motion for Temporary and Preliminary Injunctive Relief. Based upon an agreement of the parties, the Court entered a Temporary Restraining Order on August 20, 2013, enjoining Defendant for a period of fourteen days from publicly releasing records in its possession that were sent or received by Sheriff Fitzgerald in his federal official capacity as a member of the FirstNet Board of Directors. On August 30, 2013, the parties entered a Stipulation for Preliminary Injunction, enjoining Story County, directly or indirectly, from publicly releasing any records in its possession that were sent to or received by Sheriff Fitzgerald in his federal official capacity as a member of the FirstNet Board of Directors pending a hearing and decision on the merits of this action or until further order of the Court. Pursuant to the stipulation, the Court entered a preliminary injunction on September 3, 2013, ECF No. 6. 6
On September 30, 2013, Story County filed a Motion to Dismiss. On November 15, 2013, the United States filed a Motion
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for Summary Judgment and Resistance to Story County's Motion to Dismiss. On December 12, 2013, the Court held a telephonic status conference and entered a briefing schedule for the pending motions. At the March 5, 2014, hearing, Story County conceded that...
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