Case Detail

FOIA Project Annotation: A federal court in Vermont has ruled that the First Responder Network Authority, created by Congress in 2012 to develop a national wireless broadband network and operate the national network, is not subject to FOIA because its authorizing statute specifically exempts it from the Administrative Procedure Act, of which FOIA is a part. Stephen Whitaker and David Gram made a series of FOIA requests to FirstNet, which is run by AT&T by contract, and the National Telecommunications and Information Administration and the Department of Commerce, which oversees FirstNet, for records about public comments pertaining to its state-by-state operation. FirstNet responded by telling Whitaker and Gram that it was exempt from FOIA, while NTIA and Commerce referred the requests to FirstNet to respond. Under 47 U.S.C. § 1426(d)(2), FirstNet is exempt from "chapter 5 of title 5 (commonly referred to as the Administrative Procedures Act)." Whitaker and Gram argued that reference was not intended to include FOIA as well. The court disagreed, noting that "the location of FOIA within Title 5, Chapter 5 of the United States Code is undisputed. . .[T]he common usage of 'APA' to refer to the more familiar elements of the statute does not alter the fact that FOIA is codified in company with the more familiar provisions of the APA within Title 5." Whitaker and Gram argued that the Open FOIA Act of 2009, which amended Exemption 3 to require future exempting provisions to include a statutory reference to FOIA to qualify as an Exemption 3 statute and a vague reference to the APA was not specific enough. The court noted that § 1426(d)(2) was "not a specific exemption of matters from disclosure, but rather a general exemption of an entire administrative agency from all of the obligations of FOIA. A government entity utterly excused from FOIA obligations by statute need not comply with subsections of FOIA that define subclasses of specific information that can be shielded from disclosure. . . [Instead,] it rests on statutory authority located outside the APA which removes FirstNet entirely from the requirements of FOIA." Whitaker and Gram argued that NTIA and Commerce were required to search for records they might have responsive to their requests. But the court agreed with the government that "the unifying principle that emerges from [case law] is 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." Whitaker and Gram also contended that the government had not prepared privacy impact statements as required by the E-Government Act. The court found this was a separate issue that needed more briefing before reaching the merits.
Issues: Agency, Agency Record

Date Filed	Doc #	Docket Text
2017-10-06	1	COMPLAINT-Class Action against Department of Commerce filed by Stephen Whitaker, David Gram. Summons issued. (Attachments: # 1 Civil Cover Sheet)(esb) (Entered: 10/06/2017)
2017-10-10	2	MOTION for Leave to Appear pro hac vice filed by All Plaintiffs. (Attachments: # 1 Affidavit of applicant, # 2 Affidavit of good standing, # 3 Proposed Order)(Appel, Robert) (Entered: 10/10/2017)
2017-10-10	3	FIRST AMENDED COMPLAINT-Class Action against Department of Commerce filed by Stephen Whitaker, David Gram. (Attachments: # 1 Red-lined Amended Complaint)(esb) (Entered: 10/10/2017)
2017-10-11	4	ORDER granting 2 MOTION for Leave to Appear Pro Hac Vice of Kelly (Kel) McClanahan. Signed by Judge Geoffrey W. Crawford on 10/11/2017. (This is a text-only Order. (jal) (Entered: 10/11/2017)
2017-10-12	5	NOTICE OF APPEARANCE by Kelly (Kel) McClanahan, Esq on behalf of David Gram, Stephen Whitaker.(McClanahan, Kelly) (Entered: 10/12/2017)
2017-10-16	6	SUMMONS Returned Executed. Department of Commerce served on 10/13/2017, answer due 12/12/2017.(McClanahan, Kelly) (Entered: 10/16/2017)
2017-10-27	7	STIPULATION of Briefing Schedule (Joint) by David Gram, Stephen Whitaker (McClanahan, Kelly) (Entered: 10/27/2017)
2017-10-27	8	PARTIALLY UNOPPOSED MOTION to Expedite this Case filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) Text clarified on 10/30/2017 (law). (Entered: 10/27/2017)
2017-10-27	9	NOTICE OF APPEARANCE by Nikolas P. Kerest, AUSA on behalf of Department of Commerce.(Kerest, Nikolas) (Entered: 10/27/2017)
2017-10-30	10	MOTION for Partial Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Proposed Order)(McClanahan, Kelly) Attachment descriptions clarified on 10/30/2017 (law). (Main Document 10 replaced on 10/30/2017) (law). (Additional attachment(s) added on 10/30/2017: # 9 Memorandum in Support, # 10 Statement of Facts as to Which There is No Genuine Dispute) (law). (Entered: 10/30/2017)
2017-10-30	11	NOTICE OF DOCKET ENTRY CORRECTION re: 10 MOTION for Partial Summary Judgment filed by Stephen Whitaker, David Gram. The motion, memorandum in support and statement of facts were combined. The images have been broken apart and replaced on the docket. The images are now separately attached to 10 and this entry. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts as to Which There is No Genuine Dispute) (law) (Entered: 10/30/2017)
2017-10-31	12	RESPONSE in Opposition re 8 PARTIALLY UNOPPOSED MOTION to Expedite this Case filed by Department of Commerce. (Attachments: # 1 Certificate of Service)(Kerest, Nikolas) (Entered: 10/31/2017)
2017-11-02	13	ORDER granting 8 PARTIALLY UNOPPOSED MOTION to Expedite this Case. The Court shall expedite this case pursuant to 28 U.S.C. §1857(a). Signed by Judge Geoffrey W. Crawford on 11/2/2017. (esb) (Entered: 11/02/2017)
2017-11-02	14	STIPULATED BRIEFING SCHEDULE. Defendant's Motion to Dismiss or in the alternative Cross-Motion for Judgment, along with Opposition Brief to 10 MOTION for Partial Summary Judgment due by 11/14/2017. Plaintiff's reply due 11/21/2017. Signed by Judge Geoffrey W. Crawford on 11/2/2017. (esb) (Entered: 11/02/2017)
2017-11-14	15	MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by Department of Commerce. (Attachments: # 1 Memorandum in Support, # 2 Statement of Disputed Material Facts, # 3 Statement of Undisputed Facts, # 4 Declaration of N. Robinson Coates, # 5 Exhibit 1, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10, # 15 Declaration of Kathy Smith, # 16 Exhibit 1, # 17 Exhibit 2, # 18 Exhibit 3, # 19 Exhibit 4, # 20 Exhibit 5, # 21 Exhibit 6, # 22 Exhibit 7, # 23 Exhibit 8, # 24 Exhibit 9, # 25 Exhibit 10, # 26 Declaration of Michael J. Toland, Ph.D., # 27 Exhibit 1, # 28 Exhibit 2, # 29 Exhibit 3, # 30 Exhibit 4, # 31 Exhibit 5, # 32 Exhibit 6, # 33 Exhibit 7, # 34 Exhibit 8, # 35 Exhibit 9, # 36 Exhibit 10, # 37 Declaration of Brian Hobson, # 38 Exhibit 1, # 39 Declaration of Andrew Katsaros, # 40 Certificate of Service) (same images as 16 ) (Kerest, Nikolas). Added MOTION for Summary Judgment on 11/15/2017 (law). Text clarified on 11/16/2017 (jlh) (Entered: 11/14/2017)
2017-11-14	16	RESPONSE in Opposition to 10 MOTION for Partial Summary Judgment filed by Department of Commerce. (Attachments: # 1 Statement of Disputed Material Facts in Response to Plaintiffs' Statement of Material Facts as to Which There is No Genuine Dispute, # 2 Statement of Undisputed Facts, # 3 Declaration of Natasha Robinson Coates, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Declaration of Kathy Smith, # 15 Exhibit 1, # 16 Exhibit 2, # 17 Exhibit 3, # 18 Exhibit 4, # 19 Exhibit 5, # 20 Exhibit 6, # 21 Exhibit 7, # 22 Exhibit 8, # 23 Exhibit 9, # 24 Exhibit 10, # 25 Declaration of Michael J. Toland, Ph.D., # 26 Exhibit 1, # 27 Exhibit 2, # 28 Exhibit 3, # 29 Exhibit 4, # 30 Exhibit 5, # 31 Exhibit 6, # 32 Exhibit 7, # 33 Exhibit 8, # 34 Exhibit 9, # 35 Exhibit 10, # 36 Declaration of Brian Hobson, # 37 Exhibit 1, # 38 Declaration of Andrew Katsaros, # 39 Certificate of Service) (same images as 15 ) (law) (Entered: 11/15/2017)
2017-11-21	17	STIPULATED MOTION to Modify 14 STIPULATED BRIEFING SCHEDULE filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) Link corrected on 11/22/2017 (jlh). (Entered: 11/21/2017)
2017-11-22	18	NOTICE OF APPEARANCE by Marcia Sowles, Esq on behalf of Department of Commerce. (Attachments: # 1 Certificate of Service)(Sowles, Marcia) (Entered: 11/22/2017)
2017-11-22	19	ORDER granting 17 STIPULATED MOTION to Modify 14 STIPULATED BRIEFING SCHEDULE. Signed by Judge Geoffrey W. Crawford on 11/22/2017. (esb) (Entered: 11/22/2017)
2017-11-24	20	MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment, 10 MOTION for Partial Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) (Entered: 11/25/2017)
2017-11-26	21	REPLY to Response to 10 MOTION for Partial Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Exhibit H)(McClanahan, Kelly) (Same image as 22 ) (Entered: 11/26/2017)
2017-11-26	22	RESPONSE in Opposition to 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Exhibit H, # 2 Proposed Order)(McClanahan, Kelly) (Same image as 21 ) (Entered: 11/26/2017)
2017-11-28	23	NOTICE of Hearing re: 10 MOTION for Partial Summary Judgment, 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment. Hearing set for 12/15/2017 at 1:00 PM in Burlington Courtroom 110 before Judge Geoffrey W. Crawford. (pjl) (Entered: 11/28/2017)
2017-11-30	24	ORDER granting 20 MOTION for Extension of Time to File Reply re 10 MOTION for Partial Summary Judgment and re 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment. Reply due 11/25/17. Signed by Judge Geoffrey W. Crawford on 11/30/2017. (This is a text-only Order.) (jal) (Entered: 11/30/2017)
2017-12-01	25	STIPULATED MOTION for Leave to Exceed Page Limit for Reply Brief re 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by Department of Commerce. (Attachments: # 1 Certificate of Service)(Kerest, Nikolas) Text clarified on 12/4/2017 (jlh). (Entered: 12/01/2017)
2017-12-03	26	STIPULATED MOTION to Waive Local Civil Rule 83.1(b)(4)(B) re hearing on 10 Motion for Partial Summary Judgment and 15 Motion to dismiss for Failure to State a Claim and Motion for Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) Links corrected on 12/4/2017 (jlh). (Entered: 12/03/2017)
2017-12-04	27	ORDER granting 26 MOTION to Waive Local Civil Rule 83.1(b)(4)(B). Signed by Judge Geoffrey W. Crawford on 12/4/2017. (This is a text-only Order.) (jal) (Entered: 12/04/2017)
2017-12-04	28	ORDER granting 25 MOTION to Exceed Page Limit. Signed by Judge Geoffrey W. Crawford on 12/4/2017. (This is a text-only Order.) (jal) (Entered: 12/04/2017)
2017-12-06	29	REPLY to Response to 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by Department of Commerce. (Attachments: # 1 Declaration of Stacy Cheney, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Certificate of Service)(Sowles, Marcia) Attachment names clarified on 12/7/2017 (jlh). (Entered: 12/06/2017)
2017-12-15	30	MINUTE ENTRY for proceedings held before Judge Geoffrey W. Crawford: Motion Hearing held on 12/15/2017 re: 10 MOTION for Partial Summary Judgment, 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment. K. McClanahan, Esq. present for pltfs. M. Sowles, Esq. & N. Kerest, AUSA present for dft. Court makes inquiries and counsel make statements. ORDERED: 10 MOTION for Partial Summary Judgment, 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment are taken under advisement. (Court Reporter: Anne Henry) (pjl) (Entered: 12/15/2017)
2017-12-20	31	TRANSCRIPT of Motions Hearing held on 12/15/2017 before Judge Geoffrey W. Crawford. Court Reporter Anne Henry, telephone number 802-747-9193. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/16/2018. Redacted Transcript Deadline set for 1/25/2018. Release of Transcript Restriction set for 3/23/2018. (pjl) (Entered: 12/20/2017)
2017-12-20	32	DECISION denying 10 Motion for Partial Summary Judgment; granting in part and denying in part 15 Motion to Dismiss for Failure to State a Claim and Motion for Summary Judgment. Counts 1-5 and 16 of the complaint are DISMISSED for failure to state a claim. Summary judgment is granted in favor of the Defendant on Counts 6-15 and 17 and those counts are DISMISSED. The court's decision on Count 18 is RESERVED. Supplemental memorandum re: count 18 is due by defendant no later than 1/19/2018 and by plaintiff no later than 2/3/2018. Signed by Judge Geoffrey W. Crawford on 12/20/2017. (esb) (Entered: 12/20/2017)
2017-12-22	33	MOTION for Certificate of Appealability (Interlocatory) re: 32 Decision filed by David Gram, Stephen Whitaker. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(McClanahan, Kelly) Event/text clarified, link added on 12/27/2017 (law). (Entered: 12/22/2017)
2018-01-04	34	RESPONSE in Opposition re 33 MOTION for Certificate of Appealability (Interlocatory) re: 32 Decision filed by Department of Commerce. (Attachments: # 1 Certificate of Service)(Kerest, Nikolas) (Entered: 01/04/2018)
2018-01-18	35	REPLY to Response to 33 MOTION for Certificate of Appealability (Interlocatory) re: 32 Decision filed by David Gram, Stephen Whitaker. (McClanahan, Kelly) (Entered: 01/18/2018)
2018-01-19	36	SUPPLEMENTAL MEMORANDUM by Department of Commerce re: 15 MOTION for Summary Judgment. (Attachments: # 1 Certificate of Service)(Sowles, Marcia) Text clarified, link removed on 2/2/2018 (law). (Entered: 01/19/2018)
2018-02-01	37	STIPULATED DISCOVERY LETTER SENT re: no stipulated discovery schedule filed; case may be placed on the master calendar unless stipulated schedule is filed. (pjl) (Entered: 02/01/2018)
2018-02-05	38	JOINT MOTION to Stay Local Rule 26(a) filed by Department of Commerce. (Attachments: # 1 Certificate of Service)(Kerest, Nikolas) (Entered: 02/05/2018)
2018-02-05	39	STIPULATED MOTION for Extension of Time to File Response/Reply re: 15 MOTION for Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) Event/text clarified, link added on 2/6/2018 (jlh). (Entered: 02/05/2018)
2018-02-06	40	ORDER granting 38 MOTION to Stay Local Rule 26(a). Signed by Chief Judge Geoffrey W. Crawford on 2/6/2018. (This is a text-only Order.) (jal) (Entered: 02/06/2018)
2018-02-06	41	ORDER granting 39 STIPULATED MOTION for Extension of Time to File Response/Reply re: 15 MOTION for Summary Judgment. Supplemental memorandum re: 15 Motion for Summary Judgment re: count 18 is due 2/7/2018. Signed by Chief Judge Geoffrey W. Crawford on 2/6/2018. (esb) (Entered: 02/06/2018)
2018-02-07	42	SUPPLEMENTAL MEMORANDUM by David Gram, Stephen Whitaker re: 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment. (McClanahan, Kelly) Link corrected on 2/8/2018 (jlh). (Entered: 02/08/2018)
2018-02-15	43	MOTION for Leave to File A Reply Brief In Response To Supplemental Brief re: 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by Department of Commerce. (Attachments: # 1 Certificate of Service)(Kerest, Nikolas) Event/text clarified, link added on 2/16/2018 (law). (Entered: 02/15/2018)
2018-02-21	44	REPLY to Supplemental Brief re: 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment by Department of Commerce. (Attachments: # 1 Declaration of Paul Madison, # 2 Certificate of Service)(Sowles, Marcia) Text/link clarified on 2/22/2018 (law). (Entered: 02/21/2018)
2018-02-21	45	RESPONSE in Opposition re 43 MOTION for Leave to File A Reply Brief In Response To Supplemental Brief re: 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) (Entered: 02/21/2018)
2018-04-26	46	DECISION denying 33 Motion for Certificate of Appealability; granting 43 Motion for Leave to File A Reply Brief In Response To Supplemental Brief re: 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment . Signed by Chief Judge Geoffrey W. Crawford on 4/26/2018. (law) (Entered: 04/26/2018)
2018-05-10	47	STIPULATED MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) (Entered: 05/10/2018)
2018-05-11	48	ORDER granting 47 MOTION for Extension of Time to File Sur-Reply as to 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment. Sur-Reply now due May 18, 2018. Signed by Chief Judge Geoffrey W. Crawford on 5/11/2018. (This is a text-only Order.) (jal) (Entered: 05/11/2018)
2018-05-18	49	MOTION to Strike Madison Declaration and Part of 44 Reply filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) (Entered: 05/18/2018)
2018-05-18	50	SUPPLEMENTAL SUR-REPLY to 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by David Gram, Stephen Whitaker. (McClanahan, Kelly) (Entered: 05/18/2018)
2018-05-31	51	RESPONSE in Opposition re 49 MOTION to Strike Madison Declaration and Part of 44 Reply filed by Department of Commerce. (Attachments: # 1 Certificate of Service)(Sowles, Marcia) (Entered: 05/31/2018)
2018-06-14	52	REPLY to Response to 49 MOTION to Strike Madison Declaration and Part of 44 Reply filed by David Gram, Stephen Whitaker. (McClanahan, Kelly) (Entered: 06/14/2018)
2018-06-25	53	NOTICE of New Evidence re: 49 Motion to Strike Madison Declaration and Part of 44 Reply re: 15 Motion to Dismiss by David Gram, Stephen Whitaker (McClanahan, Kelly) Links added on 6/26/2018 (jlh). (Entered: 06/25/2018)
2018-06-28	54	RESPONSE re 53 Notice of New Evidence by Department of Commerce. (Attachments: # 1 Certificate of Service)(Sowles, Marcia) (Entered: 06/28/2018)
2018-07-27	55	DECISION granting 15 Motion for Summary Judgment; denying 49 Motion to Strike. Summary judgment is granted in favor of the Defendant on Counts 18 and that count is DISMISSED. The court having denied all relief requested by the Plaintiffs, final judgment shall issue in favor of the Defendant. Signed by Chief Judge Geoffrey W. Crawford on 7/26/2018. (esb) (Entered: 07/27/2018)
2018-07-30	56	JUDGMENT - in favor of Department of Commerce against Stephen Whitaker, David Gram, and all others similarly situated. Signed by Deputy Clerk on 7/30/2018. (Attachments: # 1 Notice to Litigants (appeal period expired 9/28/2018)) (esb) (Entered: 07/30/2018)
Hide Docket Events