Zynovieva v. U.S. Dep’t of State, No. 19-3445, 2023 WL 2755599 (D.D.C. Mar. 31, 2023) (Moss, J.)

Zynovieva v. U.S. Dep’t of State, No. 19-3445, 2023 WL 2755599 (D.D.C. Mar. 31, 2023) (Moss, J.)

Re:  Request for records concerning plaintiff

Disposition:  Denying plaintiff’s motion for attorney fees and costs

• Attorney Fees, Eligibility:  “The Court disagrees [with plaintiff’s arguments].”  The court relates that “[plaintiff’s] first argument fails because the Department’s voluntary production of a Vaughn index did not afford her substantive relief on the merits.”  The court finds that “the D.C. Circuit squarely held that ‘an order compelling the production of a Vaughn index, without more, is not enough to make a plaintiff a “prevailing party” sufficient to support a claim for attorney’s fees.’”  “[T]he Court fails to see why it matters that [plaintiff] chose not [to] further to pursue her FOIA litigation after she received the Vaughn index.”  “[Plaintiff] seems to believe that her decision to end the litigation after receiving the Vaughn index turned receipt of the Vaughn index into relief on the merits, even if it would not have been had she continued to litigate.”  “This is so, she insists, because she was able to glean all she needed to further her pursuit of a visa from the Vaughn index and thus to achieve the goal of her FOIA request.”  “That the Vaughn index proved helpful to [plaintiff’s] broader purposes is salutary.”  “But it still does not follow that when [plaintiff] received the index she prevailed on the merits.”  “Learning something useful in the course of a FOIA lawsuit is not the same thing as obtaining the ‘essential elements of the relief’ sought in one’s complaint.”  “[Plaintiff’s] argument also proves too much.”  “If whether a plaintiff substantially prevails in a case turned purely on the subjective utility that the plaintiff might derive from a pleading or other litigation device, all manner of entirely unsuccessful plaintiffs could be eligible for attorneys’ fees.”  “The Court declines to read the phrase ‘substantially prevailed’ in such an odd – and unsupported – manner.”  “The problem with [plaintiff’s] second theory is not the lack of substantive relief but instead causation: she has failed to carry her burden of showing that ‘it is more probable than not that the government would not have’ released the documents ‘absent the lawsuit.’”  “By the Court’s count, the time between the initial submission of [plaintiff’s] request and her receipt of documents was just under 150 business days.”  “That is, no doubt, much longer than she should have had to wait – and longer than FOIA contemplates.”  “But some amount of delay in excess of the statutory limit is, regrettably, a common feature of the FOIA process, and a delay of even half a year does not, in the Court’s view, suffice on its own to counter the Department’s evidence that, when asked, it provides a FOIA requester with any records that the requester submitted to the Department.”  The court finds that “it took the Department several more months to make its production, so ‘[i]t seems more likely, in fact, that the documents would have been processed in the same manner, with the same result, regardless of whether litigation was filed.’”
   
• Attorney Fees, Entitlement:  The court holds that “[e]ven if [plaintiff] were eligible for fees and costs, the Court would conclude that she is not entitled to them.”  “As for Factor 1, there is no discernable public benefit from this case.”  “The documents [plaintiff] sought – both her visa applications, which she received, and the Department’s internal materials related to her applications, which she did not – are very unlikely to add to the public’s reservoir of vital information.”  “They matter to [plaintiff] for obvious reasons, but the Court doubts that they matter to anyone else.”  “Moving to Factors 2 and 3, although [plaintiff] lacked a commercial interest in the litigation, she clearly ‘ha[d] “sufficient private incentive to seek disclosure” of the documents without expecting to be compensated.’”  “As she explains, she initially filed her FOIA request and later brought suit to obtain information that would allow her to ‘adequately prepare for her next visa interview.’”  “Factor 4, by contrast, favors [plaintiff] – or would favor [plaintiff] if the Court had concluded that she was eligible for fees and costs (it did not).”  “As explained above, [plaintiff’s] eligibility argument based on the Vaughn index is a nonstarter.”  “So if, contrary to the Court’s holding, she is eligible, it would have to be because of the three documents that she received.”  “If that much is assumed, the question becomes whether the government had a reasonable basis for withholding those documents.”  “Because the parties ‘never engaged in any substantive motions practice’ regarding the documents . . . and because the Department represents that it ‘shares with FOIA requesters any record a requester provides to the Department,’ . . . the Court’s analysis is limited to whether the Department had a reasonable basis in law for not providing those documents to [plaintiff] within twenty days, as the statute requires.”  The court finds that “the Department’s explanation for its failure to timely respond to [plaintiff’s] request is scant: it has offered nothing but one statement to [plaintiff] on the phone that her request was ‘complex.’”  “That is not the sort of reasonable explanation Factor 4 requires, so this factor weighs in [plaintiff’s] direction.”  “Taking all of this together, the Court concludes that the balance of interests tips against [plaintiff].”  “She instituted this action for a private purpose, and no part of it redounds to the public benefit.”  “And although the Department failed adequately to justify its less-than-expeditious response to her FOIA request, this factor weighs less heavily in this case than it might in others.”  “The Department was neither ‘recalcitrant’ nor ‘obdurate;’ it simply acted more slowly than it should have.”