The FOIA blog

FOIA Requester Denied Entitlement to Attorney Fees

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. 

IRS Loses Attorney Fee Case

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 case can be found here: Download Attorney fee award

DC Circuit Rules Against Attorney Fee Retroactivity

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.

Another No on Retroactive Attorney Fees

Judge Richard J. Leon of the United States District Court for the District of Columbia has become the third judge in this district to find that there is no retroactive element for recovering attorney fees pursuant to the 2007 FOIA amendments.  For those of you keeping score at home, it's now 3-1 against retroactive attorney fees.

Court Orders Attorney Fee Statute Not Retroactive

Judge Henry H. Kennedy Jr. of the U.S. District Court for the District of Columbia has ruled that the attorney fee provisions in the Open Government Act of 2007 are not retroactive.  A magistrate judge had came to a different conclusion and the Department of Justice disagreed, bringing the issue before Judge Kennedy.   

Attorney Fees Awarded to Campaign for Responsible Transplantation

Judge Ricardo Urbina of the Federal District Court for the District of Columbia has awarded attorney fees to the non-profit organization, Campaign for Responsible Transplantation in its FOIA suit against the FDA.

CIA Pays Out $350,000 in Attorneys Fees

Recently, I reported on the National Security Archive's victory over the CIA in its attempt to be treated as a member of the news media.

Subsequently, the parties entered into an agreement in which the Archive's attorneys received $350,000 in attorney fees for work on the matter.  Hopefully, agencies will think out their positions before forcing litigation that results in the payment of these fees, which now under the OPEN Government Act of 2007 come from agency budgets.

The stipulated agreeement can be found here: Download Filed%20Stipulation[1]

D.C. Circuit Hands Down Attorney Fee Decision

The Court of Appeals for the District of Columbia has handing down an opinion concerning entitlement to attorney fees.  The 2-1 decision finds William Davy, Jr. entitled to attorney fees in his lawsuit against the CIA for records pertaining to the Kennedy assassination.  

I find one of the most interesting part of the discussion to be the specific discussion in the majority opinion about journalists and writers commericial interests in selling books and magazines not being a bar to being awarded attorney fees.  Additionally, Judge Tatel's concurrence is also a very interesting read.

With new attorney fee rules now on the books due to last year's FOIA amendments, I look for more court decisions on attorney fees in the coming year. 

Another Court Grants Attorney Fees Retroactively Under New Law

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.     

Court Finds Judicial Watch Eligible for Attorney Fees

The United States Court of Appeals for the District of Columbia has found that Judicial Watch is eligible for attorney fees in its lawsuit against the government for video tapes concerning the September 11, 2001 terrorist attack on the pentagon.  The Court remanded the case to the district court to now determine if Judicial Watch is actually entitled to attorney fees.

The reason the court found for Judicial Watch is that the government and Judicial Watch entered into a stipulated order that the district court signed, ordering the release of the tapes by a certain date.  The FOIA attorney fee eligibility standard at the time of the order was Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Services, 532 U.S. 598 (2001) which requires some type of relief to be ordered by the court for their to be entitlement of attorney fees. As this was a valid court order, the D.C. Court of Appeals found that under FOIA attorney fee law in effect at the time of the order Judicial Watch was indeed eligible for attorney fees.

Interestingly enough, I brought a lawsuit on behalf of a different requester for the same videotapes a few years ago.  My lawsuit resulted in the release of the tapes without any type of stipulation from the Court and I never moved for attorney fees.