Nat'l Sec. Counselors v. CIA, No. 11-444, 2017 WL 5633091 (D.D.C. Nov. 21, 2017) (Howell, C. J.)
Re: Plaintiff's multiple FOIA requests, specifically including certain records concerning CIA in-house journal and certain records concerning CIA FOIA processing; plaintiff's challenges to withholding of specific information, adequacy of the agencies' search efforts, refusal to process FOIA requests, refusal to produce responsive records in electronic format, and certain policies or practices which plaintiff claims are ongoing and systematic FOIA violations; and twelve separate alleged policies or practices of CIA
Disposition: Granting in part and denying in part plaintiff's motions for attorney fees and costs; awarding plaintiff to be determined fees and $1,255.83 plus $350.00 in costs
- Attorney Fees, Eligibility: The court holds that "plaintiff has established eligibility for a fee award." The court finds that, "[a]lthough the petitions lack specificity in describing precisely how the plaintiff prevailed with respect to each individual count, the fee petitions are generally based on the 'significant percentage of' [one of the cases] that favored [plaintiff] and 'to a lesser degree' [another case]." "Indeed, while the plaintiff was granted summary judgment on only three counts in all three cases, the plaintiff also prevailed by winning two motions to compel and causing the defendants to reverse their 'position on several issues,' perform 'a search after initially making a Glomar response,' and release 'electronic records to [plaintiff] after arguing numerous times that it was simply not feasible to do so.'"
- Attorney Fees, Entitlement: The court holds that, "[s]ince all four entitlement factors favor the plaintiff, the plaintiff is entitled to a fee award for those counts on which the plaintiff is eligible." First, the court finds that "[t]he combination of the plaintiff's intent, as expressed through [plaintiff's] statement of mission, and the results in this litigation leading to the invalidation of two policies inimical to furthering public disclosure under the FOIA demonstrate that the public benefit factor weighs in favor of the plaintiff." Second, the court finds that "plaintiff persuasively shows that ["[t]he second and third factors, the plaintiff's commercial benefit and interest in the information[,]"] weigh in the plaintiff's favor." "Indeed, the plaintiff is 'a non-profit organization which specializes in transparency and national security law.'" "The plaintiff's goal is to make documents available to the public, including to competitors." Finally, the court finds that "plaintiff's success in changing policies inimical to FOIA is sufficient to demonstrate that this fourth factor weighs in favor of the plaintiff." Specifically, the court agrees with plaintiff that there existed "'a lack of reasonable basis in law' in the government's position and 'many problems with the positions taken by CIA[.]'"
- Attorney Fees, Calculations: The court first holds that "the fee petition will not be denied, but the deficiencies of the billing records [due to the fact that "plaintiff did not submit contemporaneous billing records,"] are factored into the fee award." The court finds this instead of a full denial of the fees "since the plaintiff's records are not 'so deficient as to prevent opposing counsel or the Court from "mak[ing] an informed determination as to the merits of the application."'" The court then finds that "because the plaintiff failed to meet his burden, [an effort which the court describes as "plaintiff's barebones submission in this case, which includes an outdated declaration and offers no analysis of the USAO's newest methodology reflected in the 2015 USAO Matrix"] the methodology of the 2015 USAO Matrix will be applied as the default here to determine the prevailing market rates." "No party, however, has provided the information necessary to apply the new methodology to rates in years prior to 2015[.]" Therefore, "the parties are directed to submit jointly . . . the total amounts of the plaintiff's fee award." Additionally, the court finds that "[d]ue to the difficulty in parsing the plaintiff's billing record to determine which hours were spent on which counts and how 'necessary' each item was to the litigation, a rough justice approach will be taken to account for the limited success." The court finds that "plaintiff is eligible and entitled to an award for . . . about 30%, of the counts presented." Finally, the court holds that, "[g]iven that the plaintiff substantially prevailed on at least some of the counts in each case, and, in the case of [two of the cases], the CIA 'seeks to impose a greater burden on Plaintiff than is required by any rule,' . . . the plaintiff may recover the litigation costs of $1,605.83 in full."