A federal court in the Northern District of California has ordered HHS and NIH to pay over $139,000 in attorney fees. More details can be found here. And it should be noted that attorney fees now come out of the agency budget, so thats $139,000 that is probably not going to FOIA Operations. I'd like to see a study of whether the change in where FOIA attorney fees come from (they used to be from the DOJ judgement fund) have made FOIA offices consider the fact that they may have to pay fees from FOIA decisions that are legally questionable.
Jefferson Morley, a journalist who writes extensively about the JFK Assassination has been denied attorney fees and costs in his FOIA lawsuit against the CIA for records on George Joannides. The motion was denied previously but was remanded by the Court of Appeals with instructions on how the request should be analyzed. More can be found here on Morley's website, JFKfacts.
Judge Ricardo Urbina of the United States District Court for the District of Columbia has issued an order awarding attorneys fees in a case brought by the Electronic Privacy Information Center ("EPIC") against the Department of Homeland Security. EPIC was awarded fees for work that included the review of documents released during the litigation. Significantly, the Court disagreed with the government's argument that this was not reimburseable. The Court found that this review was part of the litigation and was compensable.
Last month, the United States Court of Appeals for the District of Columbia decided an attorneys fees issue where the document was released subsequent to the filing of the lawsuit, but the district court ruled that the government would have been able to withhold the document if it had wanted to.
At issue before the Court of Appeals was whether the requester was entitled to attorney fees in this case (both sides agreed he was eligible). The Court decided that because the government's decision to withhold the document would have been proper if the district court had made a decision on the merits, the requester was not entitled to attorney fees. Nor did any other provision of the 2007 FOIA amendments make an award of attorney fees proper in this case. The case can be found here.
Fortunately, the decision to make a discretionary disclosure of documents usually comes about before a case is briefed in the district court, so this situation may not arise that much.
The United States Court of Appeals for the District of Columbia has ruled that the attorney fees provisions in the Open Government Act of 2007 are not retroactive. Thus, events that occurred before the Act was signed do not establish that attorney fees may be recovered. This ruling came down in two cases, Judicial Watch Inc. v. Bureau of Land Management -- a case where the lower court had granted retroactive fees and Davis v. United States Department of Justice -- a case where the lower court did not grant retroactive fees.
The American Small Business League is reporting that it has received attorneys fees from the Small Business Administration ("SBA") resulting from a FOIA lawsuit the league filed in 2007. Earlier, the U.S. District Court for the Northern District of California had disagreed with the SBA's position that the database sought in the request was not the SBA's record because the database itself was compiled by the General Services Administration from data sent to it by the SBA.
To recover attorney fees, even under the more liberal standards of the 2007 Open Records act which amended FOIA attorney fee standards, a requester still must establish that he is both eligible for and entitled to the fees. In other words, getting documents after a lawsuit is filed isn't an automatic ticket for receiving attorney fees.
Even though he received documents following commencement of FOIA litigation because the agency took steps to declassify the material, journalist Ed Brayton has been denied the recovery of attorney fees because he was found not to be entitled to the fees. Judge Ricardo M. Urbana of the United States District Court for the District of Columbia found that Brayton was not entitled to the fees because the agency met one of the standards barring entitlement, namely, it properly had classified the documents at the time of the litigation and therefore was well within its rights in initially denying them to Brayton.
I expect to see more cases similar to this one where a requester receives documents after litigation is brought and the agency fights paying attorney fees. Of course, it will be much more difficult for agencies when they can't rely on a proper basis for withholding at the time the litigation was brought.
The Internal Revenue Service ("IRS") has lost an attorney fee decision under the new attorney fee provisions of the 2007 Amendments to the FOIA. The case comes from the Eastern District of Arkansas and was brought by Neil Dieninger of the law firm of Dieninger and Wingfield seeking materials disseminated to Arkansas IRS employees at a 2007 training in Tulsa, Oklahoma.
The IRS kicked the request around like a hot potato for months, disclosure offices throughout the country tried to get other offices to take responsibility for the request. Eventually the plaintiff got tired of waiting and filed suit. After the complaint was filed over a thousand pages of material were released and the only issue before the court was whether the plaintiff was entitled to attorney fees in this matter.
The court found that the plaintiff was entitled to and eligible for attorney fees under the new FOIA attorney fee provisions because the filing of the complaint prompted the release of the documents. Under the old standard, plaintiff would have probably needed a court order in his favor before attorney fees could be granted by the court.
Another interesting point in the case was that Dieninger brought the suit in his name and also his law firm. The IRS argued that a law firm couldn't receive fees for a suit brought by itself. However, the IRS had admitted the paragraph in the complaint that said that Dieninger was bringing the suit on the law firm's behalf, thereby defeating their own later argument. This of course is a good primer for attorneys in responding to complaints as you'll never know what statements that really seem harmless at one point can hurt later on.
The Federal Court of Appeals for the District of Columbia Circuit has ruled against the awarding of attorney fees under the standards enunciated in the FOIA Amendments of 2007 for cases brought prior to that act coming into law. [Ed. note--when this case was first brought against the FBI, it was assigned to me and I believe I submitted a declaration in the case, however, I was not involved in its settlement nor the issues involved with the attorney fees as I had already left the FBI by that time.]
Prior to the 2007 FOIA Amendments, attorney fees in FOIA cases were only awarded when a requester actually received a court order siding with the requester on an issue in the case. The new law which became effective in 2008 allows for the awarding of attorney fees as long as the bringing of the law suit is the catalyst for something in the FOIA request that the agency had not previously done (i.e. release of records). The Federal District Court for the District of Columbia had been split on whether the new law was retroactive; this decision ends the division in the circuit.