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Appeals panel limits attorneys fees for FOI Act requesters

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  1. Freedom of Information

    NMU         WASHINGTON, D.C.         Freedom of Information         May 15, 2002    

Appeals panel limits attorneys fees for FOI Act requesters

  • Attorneys fees are not available to Freedom of Information Act requesters if a court does not compel the release of records, a federal appeals court panel ruled, setting limits on the only practical sanction against the federal government available in FOI cases.

Lawyers for Freedom of Information Act requesters cannot recover attorneys fees when they cause government records to be released to their clients unless a court actually compels the government to release the records, a split panel of the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) ruled May 10.

The decision means that, in the circuit, if agencies choose to release records to a requester after a lawsuit is filed, rather than challenge the lawsuit in court, the requester cannot recover fees from the government to pay his attorney.

As a practical matter, liability for court costs and attorneys fees are the only sanctions against the government that are used in FOI cases. The act has a very limited provision for discipline of government employees who are “arbitrary and capricious” in handling of FOI requests, but it is almost never invoked and, in any event, does not benefit a requester.

The FOI Act provides for attorneys fees for a requester who”substantially prevails” in a FOI lawsuit. In the past, courts have awarded attorneys fees after considering whether the disclosures benefitted the public, whether they brought the requester himself any commercial benefit, the nature of the requester’s interest in the records and whether the government’s denial had been reasonable.

The Oil, Chemical and Atomic Workers International Union in December 1997 filed a FOI Act request with the United States Enrichment Corp., a government corporation producing enriched uranium, for its records concerning efforts by the federal government to privatize it.

In June 1998, Congress passed a law ordering USEC to transfer to the private sector. The union sued the next day for records it was seeking in its FOI request. When USEC actually became a private entity, the court substituted the Department of Energy for it in the lawsuit, and by December 1999, the agency had provided the union with the records it wanted.

In March 2001, a federal district court in Washington, D.C., awarded the union attorneys fees. It noted that the union had circulated the records and that the news media had used them in reporting to the public.

As a private corporation, USEC experienced extreme financial and other difficulties. Disclosure of the records “clearly and overwhelmingly” added to the public’s evaluation of the privatization process, the lower court said.

The government appealed the award, and while the appeal was pending, the U.S. Supreme Court decided Buckhannon Bd. & Care Home v. West Virginia Department of Health and Human Resources, ruling that attorneys fees were not available when a lawsuit acted as a “catalyst” to a desired result eliminating the need for court action. In Buckhannon, which was not a FOI case, a lawsuit persuaded the West Virginia Legislature to enact remedial legislation before a court ruled in the case.

Two judges on the FOI appeals panel relied on Buckhannon to reverse the lower court and deny attorneys fees. A third dissented, saying Buckhannon did not require a judicial ruling to allow attorneys fees, that it only required some judicial relationship to the change — a “judicial imprimatur” on the final action.

(Oil, Chemical & Atomic Workers v. Department of Energy; Union counsel: Daniel Guttman, Washington, D.C.) RD

© 2002 The Reporters Committee for Freedom of the Press

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