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FOIA Update: Approaching the Bench: When Plaintiff "Substantially Prevails"

FOIA Update
Vol. II, No. 4

Approaching the Bench

When Plaintiff "Substantially Prevails"

In the June 1981 issue of FOIA Update the question of how to ascertain the amount of reasonable attorney's fees was discussed. As noted in that article, calculating the amount of the fee is the last element of a three part analysis. The first two elements, eligibility (is the statutory test satisfied?) and entitlement (as a matter of judicial discretion, should fees be awarded?) also raise a number of issues.

The Freedom of Information Act provides that "The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(e). In order to be "eligible" for an award of attorney's fees, the plaintiff must have substantially prevailed and incurred attorney's fees. Generally, the courts have held that the "substantially prevailed" requirement can be satisfied either by an order requiring the release of documents or by release of documents which would not have been made except for the filing of the suit.(1)

What Causes Release

Causation issues rarely arise in cases in which the judge orders materials to be released. Most frequently the question of whether the filing of the action--as opposed to some other reason--caused the agency to release the documents is presented when suit is brought because the agency has been unable to respond to the request within the time periods specified in the Act. Usually, the courts find that if the delay was excusable under the due diligence test of Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), then it cannot be said that the litigation was the cause of release.(2) Exner v. Federal Bureau of Investigation(3) is an exception to this line of cases. There the court held that its granting of the plaintiffs request for expedited processing--as an exception to the FBI's first-in, first-out practice approved in Open America constituted "substantially prevailing," even though the suit resulted only in earlier, rather than greater, disclosure. This holding also would seem to increase the risk of the agency being found liable for attorney's fees if, without a court order, it expedites the processing of a request which is the subject of litigation.

Inadequate Searches

A search for documents which is proved in the course of litigation to be inadequate or incomplete may result in the court's finding that the plaintiff substantially prevailed if any of the subsequently discovered materials were released.(4)

Church of Scientology of California v. Harris, No. 80-1189 (D.C. Cir. Apr. 17, 1981) involved, inter alia, 31 documents of which the agency was unaware during the administrative stage and which were first located during discovery proceedings. The agency claimed that these documents were exempt from mandatory release under the FOIA, but were being released as a matter of discretion. The government argued, therefore, that it should not be "punished" by having attorney's fees assessed against it. The court held that the plaintiff had substantially prevailed because the litigation, not the agency decision to make a discretionary release, produced the 31 documents. The disturbing aspect of this decision is that the appellate court made no finding as to whether the 31 documents were, as the agency claimed, exempt from mandatory release. The decision of the court to ignore the underlying issue of whether the documents were exempt may result in extreme reluctance on the part of the government to make any discretionary releases once litigation is commenced

Determining what constitutes "substantially prevailing" is not susceptible to precise determination. Judge Gerhard A. Gesell has disapproved of "arithmetic gamesmanship" whereby each party argues over pages and percentages of groups of materials sought.(5) The government has enjoyed only limited success in arguing that attorney's fees should not be awarded unless the materials released are of significance. See Braintree Electric Light Department v. Department of Energy, 494 F. Supp. 287 (D.D.C. 1980) (bulk of documents withheld; no attorney's fees because only documents ordered disclosed were of "minimal significance").

Were Fees Incurred?

The final question concerning "eligibility" for attorney's fees turns on whether such fees have been "incurred." The District of Columbia Circuit Court of Appeals permits pro se litigants to recover attorney's fees because it interprets the phrase "reasonably incurred" in 5 U.S.C. § 552(a)(4)(E) to modify only "litigation costs," thereby allowing "reasonable attorney fees" to be awarded even though not incurred.(6) This interpretation has been rejected by the courts of appeal for the first, second and tenth circuits.(7)

Once a plaintiff has satisfied the statutory threshold of "eligibility" for attorney's fees, the discretionary question of "entitlement" to such fees must be addressed by the court. The case law is uniform in recognizing four specific factors governing the entitlement to attorney's fees:

(1) the benefit to the public, if any, derived from materials disclosed;

(2) the commercial benefit to the plaintiff;

(3) the nature of the plaintiff s interest in the records sought; and

(4) whether the Government's withholding had a reasonable basis in law.(8)

Here counsel for the government should analyze the facts as they apply to each of the factors. All of the criteria should be carefully weighed and no one particular factor should receive dispositive weight. (9) While categorizing decisions weighing these factors is difficult, several courts have found an award of attorney's fees inappropriate where the plaintiff's request furthered its own commercial interests (each of the first three factors weighing against the requester.) (10) In this context it should be noted that a request of a national television network has been held to be motivated by news or journalistic purposes rather than in furtherance of its commercial interests. (11) On the other hand, the District of Columbia Court of Appeals has implied that a prisoner's unexplained interest in the weapons and security procedures of the United States Marshal Service would appear not to satisfy the "benefit to the public" test set out in the first criterion. (12)

As described here and in the preceding FOIA Update, it is clear that even after all disclosure issues in a suit have been settled, much work on attorney's fees may still remain before the case is finally closed.

(This article was written by Richard Hiff, acting director of the Office of Privacy and Information Appeals.)


1. E.g., Church of Scientology of California v. Harris, No. 80-1189 (D.C. Cir. Apr. 17, 1981).

2. Cox. v. United States Department of Justice, 601 F.2d 1, 6 (1979); Pacheco v. FBI, 470 F. Supp. 1091 (D.P.R. 1979).

3. 443 F. Supp. 1349 (S.D. Cal. 1978), aff'd, 612 F.2d 1202, 1207 (9th Cir. 1980).

4. Church of Scientology of California v. Harris, No. 80-1189 (D.C. Cir. Apr. 17, 1981); Allen v. Immigration and Naturalization Service, No. 80-2246 (D.D.C. July 20, 1981).

5. Indian Law Resource Center v. United States Department of Justice, No. 79-0540 (D.D.C. Jan. 25, 1981). But see Fonda v. U.S. Department of Justice, No. 76-289 (D.D.C. May 13, 1981) (". . . the Court would be reluctant to conclude that release of 23% of the material meets the standard of substantially prevailing").

6. Cuneo v. Rumsfeld, 533 F.2d 1360, 1366 (D.C. Cir. 1977).

7. Crooker v. Department of Justice, 632 F.2d 916 (1st Cir. 1980); Burke v. United States Department of Justice, 559 F.2d 1182 (10th Cir. 1977), affirming 432 F. Supp. 251 (D. Kan. 1976).

8.There. is no presumption in favor of awards of attorneys fees. The plaintiff bears the burden of making the necessary showing. Fonda v. U.S. Department of Justice, supra.

9. LaSalle Extension University v. F.T.C., 627 F. 2d 481, 484 (D.C. Cir. 1980); Fenster v. Brown, 617 F.2d 740, 743 (D.C. Cir. 1979); Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d 704, 714 (D.C. Cir. 1977).

10. LaSalle Extension University v. F.T.C., supra; Fenster v. Brown, supra. But see Allen v. Immigration and Naturalization Service, supra, where the first three factors tilted in favor of the defendant, but where the court granted an award in order to compensate the plaintiff for "enduring an agency's unreasonable refusal to comply with the FOIA."

11. American Broadcasting Companies, Inc. v. U.S. Department of Labor, No. 78-1711 (D.D.C. Oct. 9, 1980).

12. Cox. v. United States Department of Justice, supra.

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Updated August 13, 2014