Aqualliance v. NOAA, No. 17-02108, 2019 WL 2451687 (D.D.C. June 12, 2019) (Cooper, J.)

Aqualliance v. NOAA, No. 17-02108, 2019 WL 2451687 (D.D.C. June 12, 2019) (Cooper, J.)

Re:  Request for records concerning pollution caused by failure of California's Oroville Dam in 2017

Disposition:  Denying plaintiff's motion for attorney fees

• Attorney Fees, Eligibility:  The court holds that "[t]he lawsuit here caused the agency to change its position" on three documents and produce them to plaintiff.  "That is enough to show the lawsuit was a catalyst for its production."  The court relates that "[t]he first document NOAA produced 'should have been tagged as non-responsive, but was erroneously tagged as withhold-in-full pursuant to Exemption 5.'"  "Despite being told that the document was not responsive, [plaintiff] 'refused to relinquish its challenge to the withholding of the document.'"  "NOAA thereafter 'opted to produce the document in full to Plaintiff rather than quarrel needlessly about the need to produce the non-responsive document.'"  "As for the second document, a draft letter addressed to FERC regarding the Oroville Dam emergency, NOAA contends that, although it properly asserted the deliberative process privilege at the time the exemption was claimed, the need to assert the privilege dissipated over time because there was no longer any foreseeable harm from disclosing it."  "The last produced document, another draft letter, warrants the briefest discussion."  "NOAA admits that it 'did change its position.'"
   
• Attorney Fees, Entitlement:  The court holds that, "[b]ecause NOAA responded reasonably to the FOIA request, [plaintiff] is not entitled to an award."  "This is true notwithstanding that it is only one factor of four that favors NOAA."  "Remember, 'the touchstone [of the entitlement prong] is always whether an award of attorney fees is necessary to implement the FOIA.'"  "Beyond the relatively brief delay in processing the request before the lawsuit was filed, the way in which this case has proceeded suggest that a fee award is not necessary to either motivate requesters to zealously seek information or encourage the government to efficiently respond to their requests."  The court relates that "NOAA concedes that the first three factors weigh in favor of a fee award."  As to the fourth factor, the court finds that "[w]hen evaluating the reasonableness of an agency’s withholdings, courts should ask 'whether the agency's opposition to disclosure had a reasonable basis in law, and whether the agency had not been recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior.'"  The court then finds that, "[a]lthough NOAA initially failed to respond to [plaintiff] in a timely manner, it appears to have acted responsively and helpfully ever since."  "[E]ven accepting that NOAA ought to have offered a more robust explanation for the pre-suit delay, the agency's actions after the suit was filed would still compel the conclusion that the agency acted reasonably in response to [plaintiff's] request."  "NOAA produced a massive amount of documents within weeks, and then worked diligently to make sure the few hundred documents it referred to other agencies were being processed expeditiously."  "Then, when some disputes lingered, the parties resolved them through collegial and productive exchanges and without the need for motions practice in federal court."  "Frankly, the Court wishes it saw many more FOIA cases handled in a like manner."