W. Energy Alliance v. U.S. Fish and Wildlife Serv., No. 14-1435, 2015 WL 1903292 (10th Cir. Apr. 28, 2015) (Briscoe, C. J.)

W. Energy Alliance v. U.S. Fish and Wildlife Serv., No. 14-1435, 2015 WL 1903292 (10th Cir. Apr. 28, 2015) (Briscoe, C. J.)

Re: Request for records concerning peer review process used in developing "A Report on National Greater Sage–Grouse Measures"

Disposition: Affirming district court's denial of plaintiff's motion for attorney fees and costs

• Attorney Fees, Entitlement:  The Court of Appeals for the Tenth Circuit affirms the judgment of the district court.  First, the court finds that "[t]he district court did not abuse its discretion in concluding [that plaintiff's] averments failed to demonstrate public dissemination."  The court explains that "[a]side from the bald assertion that [plaintiff] made the information 'available to ... the general public,' . . . the statement addresses only [plaintiff's] use of the information in its advocacy on behalf of his members."  "And while [plaintiff] cites other evidence that it contends demonstrates public dissemination, it failed to present that evidence to the district court."  The court determines that "[it] cannot find an abuse of discretion based on the district court's failure to consider evidence that was not in the record before it."  Second, the court finds that "[plaintiff] does not cite any case precluding the district court from considering, as a factor in denying a fee award, the private benefit derived by a nonprofit entity in obtaining information pursuant to a FOIA request."  The court explains that "[t]he purpose of FOIA is 'not to enhance the private benefits of litigants.'"  However, the court does note that "a private benefit to the plaintiff in obtaining disclosure under FOIA does not preclude a fee award 'if the record discloses an adequate public benefit from the enforced disclosure of the material.'"  Last, the court finds that while "[t]he district court determined that the fourth factor—the government's basis for withholding the records—weighed in favor of a fee award," "[plaintiff] fails to show that the district court abused its discretion in finding that FWS did not act in bad faith or in declining to give this final factor greater weight that the others combined."