D.C. Circuit court awards attorney's fees in FOIA case

A federal appeals court awarded a Freedom of Information Act requester attorney fees Friday, issuing its second opinion in the same case that rebuked the lower court.

The U.S. Court of Appeals in Washington, D.C. decided FOIA requester William Davy deserved to have his attorney’s fees paid after six years of litigation against the CIA. Davy sought records related to the assassination of President John F. Kennedy.

The district court initially refused to award the attorney’s fees reasoning that Davy had not substantially prevailed in his claims. The appeals court reversed that ruling, but then the district court again found Davy shouldn’t get fees, that time because he was a commercial requester.

On Friday, the appeals court reversed the district court a second time. The appellate court called Davy the “quintessential requester of government information envisioned by FOIA” and said that merely because Davy might write a book using documents he obtained from the FOIA request, he was not a commercial requester.

Commercial requesters typically do not receive attorney’s fees from FOIA litigation; book authors are not generally considered commercial requesters.

“The mere intention to publish a book does not necessarily mean that the nature of the plaintiff’s interest is ‘purely commercial,’” Judge Judith Rogers wrote for the court. “Surely every journalist or scholar may hope to earn a living plying his or her trade, but that alone cannot be sufficient to preclude an award of attorney’s fees under FOIA,” she continued.

The court also pointed out Davy received documents that had not been previously public, a fact which distinguished his case from those that the lower court had relied on.

Judge A. Raymond Randolph dissented from Rogers and Judge David S. Tatel. Randolph said the other judges were improperly treating Davy as a “journalist” and that the information he sought did not benefit the public.

The Reporters Committee for Freedom of the Press joined a friend-of-the-court brief filed in support of Davy.