Poulsen v. DHS, No. 13-498, 2016 WL 1091060 (D.D.C. Mar. 21, 2016) (Kollar-Kotelly, J.)

Poulsen v. DHS, No. 13-498, 2016 WL 1091060 (D.D.C. Mar. 21, 2016) (Kollar-Kotelly, J.)

Re: Request for records concerning internet activist

Disposition: Granting in part and denying in part plaintiff's motion for attorney fees and costs; awarding plaintiff $22,588.50 in fees and $350 in costs      

• Attorney Fees, Eligibility:  The court holds that "[p]laintiff substantially prevailed in this litigation because Plaintiff obtained relief through multiple enforceable orders of this Court."  The court notes that "[i]t is important that Defendant did not produce any documents until Plaintiff filed his Complaint."  "Alternatively, the Court would also conclude that, insofar as Plaintiff received relief in part because of voluntary changes in the agency’s position, Plaintiff substantially prevailed because Plaintiff's claim is not insubstantial."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  "The Court pauses to address the argument that the agency makes in passing that Plaintiff did not exhaust his administrative remedies."  The court finds that "[t]he fact that the agency seems to have misplaced Plaintiff’s appeal for almost a month does not mean that Plaintiff has failed to exhaust his administrative remedies."  "Nor is it material that the agency responded to Plaintiff's appeal within 20 working days after locating the appeal when that response was issued almost two months after the appeal was initially received by the agency."  "The consequences of the agency's mistakes fall on the government, not on Plaintiff."
   
• Attorney Fees, Entitlement:  "[B]ecause the Court finds that all four factors of the entitlement inquiry weigh in Plaintiff’s favor, the Court concludes that Plaintiff is entitled to fees and costs in this action."  First, "the Court concludes that Plaintiff has satisfied [the commercial benefit to the plaintiff and the nature of the plaintiff's interest in the records] factors and focuses its analysis on the parties' disputes regarding the first factor (the public benefit) and the fourth factor (the reasonableness of the agency’s position)."  Next, "[t]he Court agrees with Plaintiff that he has shown that there was a public benefit to the disclosures."  The court finds that plaintiff has "received extensive material as a result of this litigation regarding his FOIA request" and "published articles based on the materials that he received through this FOIA litigation and posted significant materials directly online for public consumption."  Finally, "the Court concludes that Defendant has not shown that it had a reasonable or colorable basis in law for relying on exemption 7(A)."  The court finds that "the agency never even indicates when the investigation began or ended, even in its briefing, such that the Court could conclude that the reliance on exemption 7(A) was proper at the time the agency issued its denial letter."  Moreover, the court finds that "[i]t is not enough for the government to state baldly that 'the agency believed that its investigation regarding [the subject] remained open.'"
   
• Attorney Fees, Calculations:  The court first notes that "[t]he parties' primary dispute as to this portion of the inquiry is regarding the applicable hourly rate."  In response to plaintiff's request for "fees pursuant to the hourly rate scale calculated via the Legal Services Index . . . update to the United States Attorney's Laffey matrix," "the Court concludes that Plaintiff has not shown that the LSI rates are appropriate for the tasks involved in this specific case."  "While it may be true that the FOIA litigation generally falls into the category of complex Federal litigation, the Court concludes that Plaintiff has not shown that the particular tasks involved in this FOIA case are 'as complex as the type of litigation that supports the "enhanced" hourly rates in the LSI Laffey Matrix.'"  "This case did not involve creation of a Vaughn index or briefing of dispositive motions."  "As the Court is well aware, based on its role throughout the prosecution of this case, Plaintiff's counsel's role was more focused on coordination with opposing counsel, preparation and submission of Joint Status Reports to the Court, monitoring of ongoing production, and negotiations regarding the applicability of certain exemptions that the agency applied."  "The Court does not minimize the importance of these tasks, either in this case or in general."  "Yet, the Court cannot conclude based on the record submitted that the tasks required of Plaintiff's counsel, as a whole, are the types of tasks that merit rates enhanced beyond the Laffey rate scheme."  Additionally, the court finds that "[b]ecause [a supplemental memorandum filed by plaintiff] was necessitated by Plaintiff's [mistake] . . . the Court concludes that fees for the preparation of the supplement are not warranted."