The FOIA blog

DHS Ordered To Pay Attorney Fees

The Department of Homeland Security has been ordered to pay attorney fees in a FOIA cast that began in 2012 - Judge Gladys Kessler of the United States District Court found that the plaintiff, EPIC, substantially prevailed as the agency released thousands of pages of material due to the lawsuit.  More can be found here.

Attorney Fees Awarded in Case Brought by Partnership

Attorney fees have been awarded in a case brought by STS Energy Partners against the FERC.  What is interesting in the case, is that the court found the documents had a public interest but that they also commercially benefited the plaintiffs.  However, the court, in its discretion found that the agencies actions in withholding the documents prior to litigation and the public interest in the documents were enough to merit an award of attorney's fees.  It will be interesting to see if the government accepts the decision or files an appeal of it.

The opinion can be found here. Download STS Energy FERC FOIA Decision (1)

House Passes FOIA Amendments

Last evening, the House of Representatives passed amendments to the FOIA, many of which are very good.  The Hill has more on the bill.

One thing the Hill doesn't discuss is that the amendments changes the attorney fees provision - from being discretionary to those who substantially prevail they are now mandatory.  The problem is that the last FOIA amendments in 2006 took the payment of those attorneys fees from the Justice Fund for attorney fees and made them come out of FOIA office operating funds.  The amendments do not change this - so if passed, any FOIA litigation that substantially prevails will be entitled to attorney fees coming directly out of agency FOIA operations.  This may sound good in that those FOIA offices that are doing poorly will have an incentive to clean up their act; however, in reality it will likely mean that more money goes out to a few requesters who have sued, litigation increases and FOIA offices have to stop hiring and processing requests to make up the shortfall.  Hopefully the Senate will look into this provision and make the necessary changes.

CIA Ordered to Pay Over $400,000 in Attorney Fees

Judge Royce Lamberth has ordered the CIA to pay over $400,000 in interim attorney fees to two attorneys in a decade old FOIA case.  The opinion can be found here.

HHS Ordered to Pay Over $139,000 in Attorney Fees

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.

JFK Journalist Denied Attorney Fees in FOIA Suit

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.

Significant Attorney Fees Decision Released

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.  

DC Circuit Rules on Attorney Fees Case

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. 

DC Circuit Rules Attorney Fees Provisions of 2007 FOIA Amendments Not Retroactive

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.

American Small Business League Recieves Attorneys 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.