Whitaker v. DOC, No. 17-192, 2017 WL 6547880 (D. Vt. Dec. 20, 2017) (Crawford, J.)

Whitaker v. DOC, No. 17-192, 2017 WL 6547880 (D. Vt. Dec. 20, 2017) (Crawford, J.)

Re: Request for certain records concerning First Responder Network Authority ("FirstNet"), an independent authority within National Telecommunications and Information Administration ("NTIA"), itself an agency of the Department of Commerce ("DOC")

Disposition: Granting defendant's motion to dismiss; granting defendant's motion for summary judgment; denying plaintiffs' motion for partial summary judgment

• Procedural Requirements, Entitles Subject to the FOIA:  "The court concludes that FirstNet is exempt from FOIA pursuant to 47 U.S.C. § 1426(d)(2)."  The court relates that "Section 1426(d) of Title 47 provides:  '(d) Exemption from certain laws. Any action taken or decisions made by the First Responder Network Authority shall be exempt from the requirements of — . . .  (2) chapter 5 of title 5 (commonly referred to as the Administrative Procedures Act)[.]'"  "The court is satisfied that FOIA falls within 'chapter 5 of title 5 (commonly referred to as the Administrative Procedures Act)' and that FirstNet is accordingly exempt from FOIA."  The court finds that "the words of the statute are unambiguous."  Additionally, responding to plaintiff's argument, "[t]he court is satisfied that the broad exemption from all APA provisions set forth in 47 U.S.C. § 1426(d)(2) is not subject to the requirement of subsection (b)(3)(B) and is not invalid for failure to cite subsection (b)(3)(B)."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court relates that "[p]laintiffs protest that [defendant's] declarations are deficient in several respects, principally with respect to the basis of the agency officials' conclusion that the agencies were not likely to possess responsive records."  The court finds that "none of the Plaintiffs' objections are sufficient to overcome the presumption of good faith to which the officials are entitled or to raise any genuine factual dispute."  "The court finds no genuine dispute as to truth of any of the statements made in the agency declarations, or as to any other material fact in this matter."
   
• Procedural Requirements, Searching for Responsive Records:  "The court finds no genuine dispute as to the sufficiency of the agency declarations to establish the futility of searches for records responsive to the Plaintiffs' requests."  The court explains that "when an agency reasonably determines, based on the nature of the request and the scope of the agency's operations, that it is unlikely to have responsive records and that a search is likely to be futile, it need not proceed with a search."
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal:  "With respect to the alleged policy or practice at the NTIA and the DOC of referring FOIA requests to FirstNet, the agency declarations, the veracity of which are not genuinely disputed on summary judgment, establish that the response to these requests was the result of individual evaluations of each request by an agency official, who made a determination about whether the agency was likely to have responsive records."  "Further, the agency declarations establish that the referral of each request to FirstNet after the determination that any responsive records would be FirstNet records was not done in lieu of the recipient agency considering the request, but rather in addition to it."  "The declarations further state that the referral of the requests to FirstNet was not part of a conspiracy to shunt all FOIA requests to  FOIA–immune agency, but rather was done in order to give FirstNet notice of the request and an opportunity to exercise its discretion to release documents that would have been responsive to the request if it deemed it appropriate to do so."