970 F.3d 200
2d Cir.2020Background
- First Responder Network Authority (FirstNet) was created by Congress to manage a National Public Safety Broadband Network; AT&T won the 2017 contract and, with FirstNet, launched a State Plans Portal to communicate state plans and solicit opt-in decisions.
- Between Sept–Oct 2017 plaintiffs submitted six FOIA requests to FirstNet, NTIA (within DOC), and DOC seeking Portal user comments, state opt-in communications, contracts/agreements with AT&T, state plans, Portal terms of use, and opt-out correspondence.
- FirstNet refused to search or produce records, citing its enabling statute, 47 U.S.C. § 1426(d)(2), which it interpreted as exempting it from FOIA; NTIA and DOC either produced a few Portal terms-of-use records or said responsive records would be FirstNet’s and transferred/declined to search.
- Plaintiffs sued, asserting FOIA violations against FirstNet, NTIA, and DOC; a claim that §1426(d)(2) does not exempt FirstNet from FOIA; a policy/practice claim that NTIA/DOC automatically refer FirstNet requests; and an E-Government Act §208 claim for failure to perform privacy impact assessments.
- The district court dismissed counts against FirstNet and the statutory challenge under §1426(d)(2), granted summary judgment to DOC/NTIA on search/referral claims (finding searches would be futile), and held the §208 claim unripe as to the yet-unbuilt NPSBN.
- The Second Circuit affirmed: (1) §1426(d)(2) exempts FirstNet from FOIA; (2) an agency need not search if a reasonable, good-faith determination shows a search would be futile; and (3) the §208 claim as to NPSBN is unripe.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FirstNet is subject to FOIA | §1426(d)(2)’s parenthetical (“commonly referred to as the APA”) shows Congress did not mean to exempt FOIA | §1426(d)(2) plainly exempts FirstNet from the requirements of chapter 5 of Title 5 (which includes FOIA) | FirstNet is exempt from FOIA under §1426(d)(2) |
| Whether NTIA/DOC were required to search for responsive records | Agencies should have searched instead of deferring to FirstNet; declarations insufficient | Agencies may decline a search when, in good faith, they reasonably determine a search would be futile because they don’t maintain the records | Agencies need not search when a reasonable, good-faith determination shows a search would be futile; summary judgment for DOC/NTIA affirmed |
| Whether DOC/NTIA had an unlawful policy of automatically referring FOIA requests to FirstNet | DOC/NTIA maintain a practice of referring requests and thus violate FOIA | Agencies make case-by-case determinations and will search when likely to have records; no automatic-referral policy | No evidence of an automatic-referral policy; summary judgment for DOC/NTIA affirmed |
| Whether the §208 E-Government Act claim (privacy impact assessment) is ripe | Plaintiffs contend assessments for NPSBN are required and actionable now | NPSBN is not yet operational; privacy claims about future systems are unripe | Claims about privacy assessments for the not-yet-operational NPSBN are unripe; district court properly dismissed that portion |
Key Cases Cited
- U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (describing FOIA as part of the Administrative Procedure Act and explaining FOIA’s relationship to APA history)
- U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) (defining when a document is an agency record for FOIA)
- Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990) (agency must make a good-faith effort using reasonable methods to search for requested records)
- Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) (search adequacy measured by reasonableness of effort given the request)
- SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991) (clarifying standard that searches be reasonably calculated to uncover requested documents)
- Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999) (agency affidavits receive a presumption of good faith in FOIA summary-judgment context)
- Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) (zone-of-interests test governs whether plaintiffs fall within interests protected by a statute authorizing suit)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (jurisdictional requirements, including ripeness and standing, are threshold and must be addressed before merits)