Hertz Schram PC v. FBI, No. 12-14234, 2015 WL 5719673 (E.D. Mich. Sept. 30, 2015) (Goldsmith, J.)

Hertz Schram PC v. FBI, No. 12-14234, 2015 WL 5719673 (E.D. Mich. Sept. 30, 2015) (Goldsmith, J.)

Re: Request for records concerning plaintiff's client's fans classification as a gang

Disposition: Adopting Magistrate Judge's Report and Recommendation; denying plaintiff's motion for attorney fees

• Attorney Fees, Eligibility:  "[B]ecause Plaintiff did not show that it 'substantially prevailed' in its request, the Court finds that Plaintiff is not eligible for attorney fees under the statute."  First, the court clarifies that "the statute calculates the 20-day response period from the date of 'the receipt' of the request, and not from the date an agency acknowledges receipt" and, "[t]herefore, it appears that Plaintiff’s suit, . . .  was not premature."  The court then finds that "[p]laintiff has failed to demonstrate that the litigation was reasonably necessary to obtain a response, or otherwise had a causative effect on the FBI’s release of documents."  "Nor has Plaintiff shown that the lawsuit elicited a voluntary or unilateral change in the FBI’s position with respect to the request."  The court finds that "the mere sequence of events is not sufficient to establish that the lawsuit was the triggering agent for the FBI’s response."  Additionally, "[a] failure to comply strictly with the statutory deadlines, especially where the delay is attributed to the administrative processing of the request, does not necessarily mean that a lawsuit is necessary to obtain the requested information."  The court explains that "the lag in the FBI’s response time appears to be the product of administrative delay that is routinely associated with bureaucratic processes and procedures; there is no suggestion that the FBI was intentionally resisting or obstructing Plaintiff’s request."  The court finds that "there is no indication that the agency’s response would have been any different in the absence of the lawsuit."
   
• Attorney Fees, Entitlement:  "Even if Plaintiff were eligible for attorney fees for having 'substantially prevailed' in this lawsuit, the Court agrees with the Magistrate Judge and Defendant that the equitable factors do not support an entitlement to fees."  "The Court agrees with the Magistrate Judge that the agency did not act unreasonably here, and consequently the litigation did not further the public’s general interest in agency transparency and accountability under FOIA."  "The Court also agrees with the Magistrate Judge that Plaintiff had a commercial interest in obtaining these documents."  "Notably, Plaintiff has not indicated that it is representing its clients pro bono; therefore Plaintiff is presumably being compensated for its services in the underlying litigation, and to the extent the request was made in furtherance of that litigation, Plaintiff has a pecuniary interest in obtaining the documents."  "Finally, the Court agrees that the agency had a reasonable basis for withholding certain records," as discussed above.