Harrington v. HHS, No. 20-2671, 2022 WL 17555428 (D.D.C. Dec. 9, 2022) (Contreras, J.)

Harrington v. HHS, No. 20-2671, 2022 WL 17555428 (D.D.C. Dec. 9, 2022) (Contreras, J.)

Re:  Request for records concerning appeals logged by FDA and HHS emails mentioning plaintiff’s name

Disposition:  Denying plaintiff’s motion for attorney fees

• Attorney Fees, Eligibility:  “[T]he Court denies [plaintiff’s] motion for attorney’s fees.”  “The Court agrees with HHS that, as a threshold matter, [plaintiff] has not proved his eligibility for attorney’s fees.”  The court finds that “[plaintiff] has not met his burden to show that his lawsuit substantially caused HHS to release documents, as ‘there is no reason to think’ that HHS would not have released the documents absent [plaintiff’s] suit.”  “Indeed, [plaintiff’s] own complaint acknowledges that HHS started processing his requests before he filed suit.”  “HHS has also submitted an affidavit averring that the agency started processing [plaintiff’s] requests before he filed suit.”  “The affidavit, which must be ‘accorded a presumption of good faith’ by this Court, provides additional details about the specific steps that HHS took in response to [plaintiff’s] requests prior to his complaint.”  “Nonetheless, [the court relates that plaintiff] maintains that a FOIA requester is still eligible for fees ‘where the lawsuit results in an “acceleration” in processing.’”  The court finds that “[w]hile it is true that ‘[s]udden acceleration . . . might, in a given case, lead a court to conclude that . . . the filing of the lawsuit was the real reason for that acceleration,’ it is also true that ‘if the government’s assertion for any delay is the slowness of the FOIA process despite its due diligence, disclosure after the lawsuit is filed, even if long delayed, will not in itself justify the award of fees.’”  “First, [the court finds that,] as indicated above, HHS made a ‘good faith effort’ to search for the records requested by [plaintiff].”  “To the extent HHS did accelerate its processing timeline, that acceleration was, according to the agency, the result of [plaintiff] ‘agree[ing] to exclude from the scope . . . ’ a number of non-responsive and duplicative records.”  Relatedly, the court also finds that “an agency’s failure to inform a plaintiff of an estimated completion date does not necessarily make the plaintiff eligible for fees.”  “Second, [the court finds that] the scope of [plaintiff’s] request clearly caused a ‘delay in disclosure.’”  “The Court finds that HHS has made a convincing argument that ‘the sheer volume of records that had to be processed was the dispositive issue related to the timing of the releases.’”  “Third, [the court finds that] HHS has established that it was ‘burdened with other duties’ that contributed to delays.”  “Specifically, HHS asserts that, by the end of fiscal year 2021, the HHS FOIA office ‘had a backlog of 2,425 requests.’”  “A significant backlog of FOIA requests may justify an agency’s delay in producing responsive records.”  The court concludes that “[plaintiff] is not eligible for fees.”