Judge Royce Lamberth of the District Court for the District of Columbia has granted attorney fees retroactively to Judicial Watch under a lawsuit against the Bureau of Land Management. During the pendency of the lawsuit, but not because of a decison of the Court, Judicial Watch received documents from the government. Satisfied with the documents, the parties settled the lawsuit except for the issue of attorney fees and costs.
The Court found that under the Open Government Act of 2007 (2007 FOIA Amendments) attorney fees could be granted retroactively to a plaintiff. This meant that a plaintiff basically only needed to show that the lawsuit served as a catalyst for the release of documents--not that it had to show that an opinion of the court resulted in the release of documents (which was the standard for FOIA attorney fees prior to the 2007 FOIA Amendments. As Judicial Watch received the documents after it filed suit against the defendant (after the defendant failed to release the documents on a number of dates it had promised a release by), the Court found that under the law, the plaintiff had substantially prevailed. The Court then found that Judicial Watch was both eligible and entitled to attorney fees.
This is an important decision as it is the first decision by a judge for the District Court for the District of Columbia, which is the court that handles approximately half of all FOIA lawsuits. Other attorney fee applications seeking retroactivity are in the pipeline, so it will be interesting what the final outcome of this issue is.