Urgent Matters

Fitzgerald-FirstNet saga generates many questions, few answers

by Donny Jackson

Table of Contents:

Nov 05, 2013

Chief among them: Why did Fitzgerald--after being instructed by the Story County board of supervisors not to do so--release to the federal government FirstNet related e-mails before releasing them to the media outlet that had made an open-records request under Iowa state law?

When FirstNet board member Paul Fitzgerald on April 23 unleashed allegations that the FirstNet board was not engaging public safety, not conducting business transparently and that some members had conflicts of interest, there was little doubt that there would be serious repercussions from Fitzgerald’s actions.

Six months later, it appears that the Fitzgerald allegations are making an impact, but not necessarily in the manner many expected. The claims about a lack of openness and transparency effectively were dismissed by an internal special review committee, and the committee’s recommendations have not been released yet. The other allegations regarding ethical and procurement matters have not been investigated yet.

FirstNet has not changed its practices—or at least has not acknowledged publicly that it has—and Fitzgerald remains on the board. But the fact that those allegations exist promise to have an impact on Fitzgerald, FirstNet and the federal government before the dust settles.

We’ll discuss the impact on FirstNet and the federal government in future columns, but today we’ll focus on the impact that the allegations have had on Fitzgerald himself.

Since making his allegations, Fitzgerald—the sheriff of Story County, Iowa—has become a cult hero among some in public safety. These first-responder fans view Fitzgerald as the lone wolf on the FirstNet board fighting publicly against commercial-wireless interests and for more public-safety input into the FirstNet network. Indeed, FirstNet did focus more on gathering public-safety input after Fitzgerald made his controversial statements, but many believe that it was planned all along to launch this effort in earnest during the latter part of the spring.

Fitzgerald supporters also have portrayed him as a shining example of open and transparent government, noting his complaints against FirstNet’s meeting and procurement practices during the first several months of its existence.

However, many eyebrows were raised by Fitzgerald’s alleged actions in mid-August. If you believe the legal filings of Story County, it was Fitzgerald who effectively blocked the release of e-mails that potentially could have given the public much greater insight into the decision-making process of FirstNet.

After Politico reporter Tony Romm asked for copies of Fitzgerald’s e-mails related to FirstNet and wireless communications that were written using his Story County e-mail account, the county’s board of supervisors voted on Aug. 13 to release the e-mails to Romm on the morning of Aug. 19. The board voted to release the e-mails to Romm under the state of Iowa’s open-records laws that apply to Iowa government officials like Fitzgerald.

Upon learning of the Story County vote, federal attorneys acted quickly, based on e-mail documents included in legal filings associated with the case.

The day after the vote, Milton Brown—the deputy chief counsel for the National Telecommunications and Information Administration (NTIA), the umbrella organization for FirstNet—sent a simple e-mail to Story County attorneys: “Can we get a copy of the documents related to the request?”

At mid-day on Thursday, Aug. 15, Story County informed Brown that it would release the subject e-mails to Brown, but it would do so only at the same time as it provided the e-mails to Romm—at 9:00 a.m. on Aug. 19.

“The rationale behind Story County, Iowa’s decision was that there appeared to be no distinction between releasing the information to the Department of Commerce and releasing the information to Politico,” according to a legal memorandum written by Story County Attorney Stephen Holmes.

This left federal attorneys with one-and-a-half business days and a weekend to get copies of the e-mails in the Story County data system, if it wanted to block the release of the records.

Why did the federal government need the e-mails? According to lawyers I’ve spoken with, government entities wanting to block the release of records must provide knowledge-based reasons to halt disclosure for it to stand up in court. Arguments such as “We don’t know what’s in these e-mails, but we want the court to block their release, because there is a chance that this person may have said something that could cause the government irreparable harm” will not work, according to my legal sources.

Add to the fact that federal attorneys would be trying to convince a court to block the release of e-mails in a decision that would override the vote of a local government entity—the Story County board of supervisors, in this case—and it seems logical that the federal government needed to know the content of the Fitzgerald e-mails to make a successful argument for blocking their release.

Fortunately for federal attorneys, they did have a source that allegedly was willing to help—Fitzgerald. According to a Story County legal filing, Fitzgerald told county officials that he had sought outside legal advice and was intending to provide a CD of all of his Story County e-mails, including the 63 FirstNet-related e-mails that were scheduled to be released to Romm. Fitzgerald later told a Story County official that he did provide the e-mails to the U.S. Department of Commerce (DOC), of which NTIA and FirstNet are part.

Fitzgerald’s action was critical to the federal government being able to make a case in federal court for preliminary and temporary injunctive relief that has blocked the release of the Fitzgerald e-mails to date, according to the Story County filing.

“The United States of America advances a content-based argument,” the Story County filing states. “The argument could not be advanced until Sheriff Fitzgerald provided his e-mails, so that the United States of America could review them.”

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