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Shifting the burden

The FOI Act reform bill would end an attorney fees problem, where federal agencies avoid paying such fees by dropping…

The FOI Act reform bill would end an attorney fees problem, where federal agencies avoid paying such fees by dropping challenges at the last minute

From the Spring 2005 issue of The News Media & The Law, page 10.

By Ryan Lozar

Seven years after requesting records from the CIA under the Freedom of Information Act, Virginia historian and author William Davy sued the agency in 2000. Two years later, despite its earlier claim that the records were so security-sensitive it could “neither confirm nor deny” their existence, the CIA “voluntarily” released a batch of more than 100 documents without waiting for U.S. District Judge Richard Leon of Washington to rule on the merits of the case.

Davy later asked Leon to order the CIA to pay the nearly $27,000 in attorney fees he incurred during the legal battle to get the records. In February of this year, Judge Leon denied Davy’s motion without explanation. In siding with the CIA, Judge Leon implicitly endorsed the agency’s argument that a 2001 U.S. Supreme Court ruling prevents FOI Act plaintiffs from collecting attorney fees without a judicial ruling or court-ordered settlement in their favor. The case is on appeal to the U.S. Court of Appeals in Washington, D.C.

The government should be barred from doing what it did in Davy’s case &#151 essentially driving plaintiffs into costly FOI Act litigation and, on the eve of a judicial ruling, backing down to avoid paying attorney fees, said Lisa Graves, senior counsel for legislative strategy for the American Civil Liberties Union. She told the U.S. Senate Judiciary Committee in March that passing the “OPEN Government Act of 2005” would fix the problem by changing the law to award a plaintiff attorney fees when his FOI Act lawsuit catalyzes government compliance with its statutory obligations to release documents. (See story, page 7)

The proposed change is known as the Buckhannon fix after the 2001 high court ruling.

What is Buckhannon?

In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, the Supreme Court narrowly rejected the argument that the government should have to pay a plaintiff’s attorney fees in civil rights cases when there has been no judicial order, even when legal action by the plaintiff forced the practical relief sought.

In Buckhannon, a nursing home filed a lawsuit under two federal civil rights statutes &#151 the Americans with Disabilities Act and the Fair Housing Amendments Act &#151 challenging the legality of a state law that adversely affected its business. After the nursing home paid costly legal bills in the case, the West Virginia Legislature repealed the law in question, mooting the controversy.

The nursing home asked the courts to order the government to pay its attorney fees, arguing that because the law had been repealed in response to its litigation, it should be considered the “prevailing party,” which is the statutory trigger for fee-shifting under the ADA and FHAA. The federal FOI Act similarly provides for fee recovery by a plaintiff who has “substantially prevailed.”

The Supreme Court rejected that argument. Chief Justice William Rehnquist wrote for the 5-4 majority that a plaintiff must receive at least some relief in a court ruling on the merits of a case or in a court-sanctioned settlement agreement to have prevailed.

Bleeding over to the FOI Act

Almost immediately, Buckhannon affected attorney fee-shifting in FOI Act cases. Less than one year after the ruling, the U.S. Court of Appeals in Washington, D.C., ruled that the FOI Act’s fee-shifting provision was akin to ones considered in Buckhannon even though its language &#151 a party who “substantially prevailed” can get an award of attorney fees &#151 varied slightly from the prevailing party provision considered by the Supreme Court.

After the D.C. Circuit’s ruling in that case &#151 Oil, Chemical and Atomic Workers International Union v. Department of Energy &#151 federal courts in at least four federal circuits have cited Buckhannon in refusing attorney fees in FOI Act cases where the defendant mooted litigation by releasing documents.

Justice Ruth Bader Ginsburg’s dissent in Buckhannon hinted at the chilling effect that the ruling would likely have on plaintiffs’ willingness to bring civil rights lawsuits. Among her concerns was that the ruling would “impede access to court for the less well heeled, and shrink the incentive Congress created for the enforcement of federal law by private attorneys general,” civil rights plaintiffs whose individual enforcement of the law benefits the general public. The majority dismissed her concern as “entirely speculative and unsupported by any empirical evidence.”

The Ohio Supreme Court did not think it lacked empirical data when it chose to award a plaintiff attorney fees when his open records lawsuit sparked government compliance in 1996 in Pennington v. Gundler, said John J. Mueller, the lawyer who represented the records requester in the case. Having rejected the catalyst theory just five years earlier in Toledo Blade v. Northwood, the state high court in Pennington unanimously reversed itself, noting that it had since observed “the proclivity of some custodians of public records to force the filing of a mandamus action by a citizen to gain access to records that are obviously public,” only to moot the litigation later by releasing the records.

“That was their rather polite and mild way of saying the empirical evidence suggests that public records custodians were abusing” a system in which they could release records that were the subject of litigation without having to pay attorney fees, Mueller said. “If you go back and look at the volume of public records mandamus cases following Toledo Blade, one easily saw that the decision [to deny attorney fees] emboldened public records custodians in Ohio to shirk their responsibilities when it came to records they didn’t want to share because they felt like they had a shield. They could get out of lawyer’s fees up to the last minute before the court put down a final entry.”

Pennington itself was such an example of the government improperly withholding records and then trying to dodge attorney fees, he said. Chief Justice Thomas J. Moyer wrote for the court that the records at issue were unquestionably public and should have been given to the plaintiff who “should not have been required to expend the resources and the time required to file a mandamus action” in order to get the documents requested.

Examples of the government toying with FOI Act plaintiffs have also arisen in the federal system since Buckhannon.

U.S. District Judge William F. Downes of Wyoming refused to award Harvey Frank Robbins attorney fees in 2002 even as he called the “curious” timing of the Bureau of Land Management’s FOI Act document production “arrogance of authority” and “indifference to citizens’ legitimate interests.” Robbins sued the bureau in federal court to get the balance of the records he had requested, but the bureau mooted the litigation by turning over the rest of the records before the court could rule.

It was not the first time that bureau’s timing had frustrated Robbins. After ignoring Robbins’s records request for six months, the agency had suddenly released some information the same day as the administrative hearing for which he needed them.

The fact that the bureau produced the first batch of documents when it was too late for Robbins to use them in his administrative action was “absolutely intentional,” said Robbins’ attorney, Karen Budd-Falen. FOI Act requests are often the only way for plaintiffs to collect information before challenging a federal agency decision in an administrative proceeding in which they’re not entitled to discovery, she said.

In denying Robbins’s subsequent motion for attorney fees from the government, Downes cited Buckhannon and criticized the bureau’s behavior. “This result should not be interpreted as a condoning of the BLM’s conduct in this matter,” he wrote, which “will not soon be forgotten. A matter of this nature involving this agency should not appear on my desk again.”

In other words, his hands were bound by Buckhannon.

U.S. District Judge Walter Herbert Rice in Ohio faced a similar dilemma in Landers v. Department of the Air Force, a 2003 case in which FOI Act requestor Mark E. Landers asked him to award attorney fees after the Air Force stonewalled on document production, and then mooted litigation once Landers sued. Rice noted that “without [the] lawsuit, the Defendant would not have complied with its statutory duty to produce the requested documents.” But because of Buckhannon, Rice ruled Landers could not collect attorney fees.

It’s common for an FOI Act requestor to get stuck with $5,000 to $10,000 in attorney fees when the government moots a litigation before a ruling, Budd-Falen said.

“I have filed so many FOIAs, that I can speak from personal experience that many requesters now just say ‘Forget it,'” she said.

Since litigation is far more expensive than writing letters, she and many of her clients stick to asking the agency in writing to please comply with their statutory obligations under the FOI Act.

All in the timing

Buckhannon also has blocked recovery of attorney fees where judicial relief has been granted to FOI Act plaintiffs, including in the high-profile case of government whistleblower Sibel Edmonds. She sued the FBI for retaliatory dismissal after she complained that the agency’s substandard translation work imperiled U.S. security.

When the FBI dragged its heels in responding to her FOI Act request for documents she needed for her lawsuit, Edmonds successfully sued the agency under a provision in the FOI Act that allows some requesters to receive records quicker than they otherwise would. In 2002, U.S. District Judge Ellen Segal Huvelle in Washington, D.C., ordered the FBI to speed Edmonds request by two months.

Edmonds later tried to recover $69,000 in attorney fees, but in March 2004, Huvelle denied her request. Despite the fact that Edmonds had gotten a judicial order against the FBI using the “expedited review” provision of the FOI Act, Huvelle ruled that hastening document production does not meet the Buckhannon standard for collecting attorney fees. Procedural rulings regarding the timing of production are different from substantive rulings on the merits, she wrote.

In July 2004, however, another federal district judge in Washington awarded an FOI Act plaintiff attorney fees after winning accelerated government document production. Judge Royce C. Lamberth ruled that the judicially mandated reduction in the government’s response time was not “a mere timing decision,” but just the sort of relief that the Buckhannon majority contemplated as proper for an award of attorney fees.

Edmonds has appealed Huvelle’s denial of attorney fees to the U.S. Court of Appeals in Washington, D.C. The court had not yet ruled as of mid-May, but during oral argument questioning in March, Judge Merrick B. Garland expressed some confusion about the FBI’s position that it was not responsible for Edmonds’s fees under Buckhannon. “The legal relationship between the parties [had] changed significantly,” he said of Huvelle’s processing order, noting that the FBI would have been in contempt if it had not complied with the order.

Recommending repeal

In Buckhannon, the Supreme Court thought that if allowed attorney fees to be paid in cases where judicial relief comes before a court rules, satellite cases of “significant dimension” would mushroom with parties fighting over whether a plaintiff’s litigation had in fact sparked the government’s response.

That argument, Mueller said, focuses more on reducing “the case load of the judges who are going to be deciding these issues, than on advancing the purposes of the federal FOIA.” It also ignores that some versions of the catalyst theory &#151 such as Michigan’s &#151 obviate the need for such satellite cases by requiring the government to pay attorney fees whenever it moots open records litigation, even if its original refusal to produce records was made in good faith.

The Buckhannon majority’s other apprehension about allowing attorney fees was that no agency would be inclined, once civil rights litigation had begun, to settle and voluntarily give a plaintiff his requested relief without a court order because to do so would virtually ensure its liability for attorney fees.

Thomas M. Susman, a Washington lawyer who has represented requesters in FOI Act disputes for two decades, also was primarily concerned with protecting freedom of information principles when he testified along with Graves before the Senate Judiciary Committee hearing in March.

“The filing of a complaint in court may be the only way to get the agency’s attention on a request, yet this tool is virtually out of reach if fees and costs cannot be recovered once the agency wakes up, completes processing of the request, and hands over the information,” he said.

Budd-Falen agreed. “I think that with Buckhannon, the Supreme Court got it wrong.”