D.C. Circuit hears author's plea for attorney's fees in FOIA case

In oral arguments Wednesday, the D.C. Circuit Appeals Court questioned whether an author could be denied attorney’s fees merely because he could ultimately profit from publishing the fruits of his Freedom of Information Act request in a book.            

The author, William Davy, filed a FOIA request with the CIA in 1999 for documents related to President John F. Kennedy’s death. Davy eventually received many of the records but only after filing a lawsuit in U.S. District Court in Washington, D.C.

Wednesday’s argument centered on whether Davy could recover attorney’s fees from the CIA because he had to litigate to receive the records. This was Davy’s second visit to the D.C. Circuit on that issue. In 2006, the D.C. Circuit ruled Davy was eligible for attorney’s fees because he had won his suit. But the appeals court sent the case back to the trial court to determine whether Davy deserved the fees under the four-part test courts apply in FOIA cases.            

The district court ruled on April 20, 2007 that Davy should not recover the fees because he had a commercial interest in the records, failing the test for recovery of fees. FOIA’s attorney fee provisions are designed to benefit requesters who act in the public interest — typically media organizations and academic scholars. Other requesters, such as for-profit corporations, are ineligible for attorney’s fees even when they prevail in their lawsuits against the government.            

Judge David Tatel, one of three judges on the panel, called Davy’s the “quintessential FOIA case.”  Tatel said Davy, who had initially proceeded without an attorney, lacked the resources to pursue this kind of case without the law’s incentive to award him attorney fees. Davy’s attorney, James Lesar, told the court he took the case on a contingency basis. Davy must be awarded fees on appeal in order for his attorney to get paid.

Tatel said Davy was “a person with a scholarly interest in government documents that he wants to review and disseminate to the public.”

Tatel went on to add the purpose of the attorney fee provisions in FOIA is to get people such as Davy to bring these cases. “Almost everyone who really wants their documents goes to court,” Tatel said. Otherwise, he said, agencies such as the CIA simply don’t respond to requests.

With Tatel on the panel were Judges Judith Rogers and Raymond Randolph.  The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case.