FOIA attorney's fee change not retroactive, court says

Hannah Bergman | Freedom of Information | Feature | June 29, 2009

A federal appeals court has decided for the first time that the 2007 amendments to the Freedom of Information Act dealing with attorney’s fees are not retroactive.

The decision, by the U.S. Court of Appeals for the D.C. Circuit, resolves differing trial court opinions on whether a FOIA requester whose case had concluded prior to the enactment of the 2007 amendments ought to have attorney’s fees awarded under the new, more liberal standard or the prior, more restrictive one.

The unanimous opinion, written by Judge Douglas H. Ginsburg for the three-judge panel in Summers v. Department of Justice, said applying the new fees provision retroactively would unfairly subject the federal government to increased liability.

“The Government’s calculus in settling Summer’s case would have been different had it known the Buckhannon rule” -- the previous standard for awarding attorney fees -- “would not apply; its decision to settle reflects a calculation that the cost associated with disclosing the disputed information to Summers was less than the cost of further litigation, including the uncertainty concerning both the outcome and whether the district court would award the plaintiff attorneys’ fees,” Ginsburg wrote.

Had Congress spoken clearly and applied the provision retroactively, the outcome would have been different, the court reasoned.

The ruling by the D.C. Circuit panel, which included Senior Judge Stephen F. Williams and Judge Janice Rogers Brown, will be binding on decisions in district court in Washington, D.C., and will likely hold sway over other courts in the country because of the expertise of the D.C. Circuit on FOIA issues.

The court also ruled Summers did not qualify for attorney’s fees under the previous Buckhannon standard.