Elec. Privacy Info. Ctr. v. DHS, No. 12-0333, 2016 WL 6879251 (D.D.C. Nov. 21, 2016) (Kessler, J.)

Elec. Privacy Info. Ctr. v. DHS, No. 12-0333, 2016 WL 6879251 (D.D.C. Nov. 21, 2016) (Kessler, J.)

Re: Request for records concerning Defense Industrial Base Cyber Pilot

Disposition: Granting in part and denying in part plaintiff's motion for attorney fees

• Attorney Fees, Eligibility: "[T]he Court finds that DHS's lack of transparency regarding its response to [plaintiff's] FOIA request, along with the Court's multiple stays, the Scheduling Order, the Modified Scheduling Order, and the Order on Plaintiff's Motion for Reconsideration, requiring that DHS review a specific number of documents per month, support a finding that [plaintiff's] lawsuit caused DHS to release responsive records and that it thereby substantially prevailed in this litigation." First, the court finds that "the Scheduling Order changed the legal relationship between the parties and [plaintiff] substantially-prevailed in this litigation as a result of its issuance." The court explains that "the courts in this District have repeatedly held that a FOIA plaintiff substantially prevails where a court issues a scheduling order requiring an agency to produce responsive documents by a date certain." "This is true even where the scheduling order adopts the production schedule proposed by the Government, rather than the one proposed by the plaintiff." "In contrast, the Court did not find in favor of [plaintiff] on a single issue in the Summary Judgment Order." "The Court merely required DHS to supplement its Vaughn index by providing additional justification for its withholdings under Exemption 7D and no additional documents were produced." "Thus, [plaintiff] did not substantially prevail as a result of the Summary Judgment Order." Second, the court finds that "plaintiff's FOIA suit was a 'catalyst' for the release of responsive documents." The court explains that "while DHS acknowledged receipt of [plaintifff's] FOIA request, it did not make a 'determination' under FOIA as to whether to comply with [plaintiff's] request." "Even if DHS had made a determination, its extensive delays suggest that it was not diligently responding to [plaintiff's] request." Additionally, "[w]hile the scope of [plaintiff's] FOIA request was broad, the Court finds that DHS failed to address its scope in a diligent manner." Finally, the court finds that "while DHS has provided evidence that it faced certain backlogs and administrative difficulties, these representations do not sufficiently demonstrate that it would have produced records without [plaintiff] being forced to file this lawsuit."
   
• Attorney Fees, Entitlement: "Having found that all four entitlement factors favor [plaintiff], the Court holds that [plaintiff] is entitled to attorneys' fees." First, "the Court finds that [plaintiff's] FOIA request satisfies the public benefit factor." The court finds that "issues of national security and privacy are of enormous public importance" and, therefore, "[plaintiff] has shown that its lawsuit 'add[ed] to the fund of information that citizens may use in making vital political choices'" and "has shown that its FOIA request had 'at least a modest probability of generating useful new information about a matter of public concern.'" Second, "the Court finds that the second and third factors of the entitlement determination weigh in favor of [plaintiff]." Responding to defendant's arguments, the court explains that "a link for donations does not transform a nonprofits' interests from public interest to commercial or self-interest" and "[plaintiff] has consistently represented that it sought the records to address concerns about the DIB Cyber Pilot Program" and "[plaintiff] has distributed this information to the public, corroborating its stated intention." Last, the court finds that, "beyond acknowledging receipt of the request, DHS failed to respond in any meaningful way to [plaintiff's] FOIA request prior to the initiation of this lawsuit." "Additionally, the Government has failed to present evidence demonstrating that it 'had a reasonable basis for failing to respond,' and therefore cannot carry its burden to show it had a colorable basis in the law."
   
• Attorney Fees, Calculations: The court holds that "[plaintiff] shall prepare a revised case billing record in accordance with this opinion." Regarding the rate calculations, "the Court finds that Plaintiff has met its burden in establishing the reasonableness of the LSI Laffey Index." "The evidence submitted by Plaintiff – an affidavit . . ., billing rate tables, and billing rate surveys – . . . certainly allows for use of the LSI Laffey index in this case." Regarding plaintiff's billing activities and hours, "[t]he Court will not award [plaintiff] any fees for its work on summary judgment because . . . [plaintiff's] arguments on summary judgment were wholly rejected and those claims were wholly independent from any claims on which [plaintiff] succeeded in this litigation." "Everything [plaintiff] won in this lawsuit – production of responsive documents – it won well before the issue of summary judgment came before the Court and [plaintiff] received no further relief on the merits from the Summary Judgment Order." "Consequently, it cannot piggy back off its success prior to summary judgment to collect fees for work done preparing its opposition and cross-motion for summary judgment." The court does award "fees incurred for work [done] after the Court issued its Summary Judgment Order but before [plaintiff] began litigating the issue of attorneys' fees[]" because "[t]he Government does not raise any specific objection to these fees." Additionally, "[w]hile the Court does find it appropriate to award [plaintiff] fees on fees, the Court agrees that [plaintiff's] request is excessive." "A fees on fees award that is roughly equivalent to the amount of time [plaintiff] spent on summary judgment would be excessive, given that [plaintiff] filed far fewer briefs in support of its request for attorneys' fees than on summary judgment." Also, "the Court will reduce [plaintiff's] billing entries to the extent of allowing [plaintiff] to claim fees for at most one senior attorney and one junior attorney for participating in conference calls." Finally, "in considering the parties' motions, the Court discovered one instance in which [plaintiff] appears to have double-billed for the work of one attorney." "As the Court has asked [plaintiff] to submit a revised bill, [plaintiff] will be afforded an opportunity to correct any and all errors present, including the error just identified."