The high price of saying no

From the Winter 2009 issue of The News Media & The Law, page 21.

In May 2001, William Davy finally received Central Intelligence Agency documents he’d asked for in two Freedom of Information Act requests since 1993. But with his records in hand, Davy still had another eight years to wait for a federal appeals court to award him the cost of his attorney’s fees.

Davy’s battle to recover those fees, which in December was finally resolved in his favor on a second appeal, became emblematic in the FOIA community of requesters’ stymied efforts to recoup their legal costs in cases where the government hands over the documents at the 11th hour before trial. While Davy pursued the CIA for his fees, Congress stepped in to seal off that backdoor through which agencies avoided costly judgments. The OPEN Government Act was signed into law in December 2007 — though parts didn’t take effect until a year later — declaring that a requester can be awarded the cost of legal fees without a court order if his lawsuit drove the agency to release the records at issue.

Those amendments to the FOIA countered a U.S. Supreme Court ruling in Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources that only a “prevailing party” could be awarded attorney’s fees. Until the new law, that meant a requester had to actually get a judgment from a court in his or her favor before being eligible to recover fees.

“It’s an outrage,” Davy said, of sticking requesters with the high cost of fighting a successful records battle. “It prevents other ordinary citizens who don’t have the resources, financial or otherwise, from pursuing this kind of litigation.”

Under that very standard — which was only the law from 2002, when the D.C. Circuit applied Buckhannon to FOIA in Oil, Chemical & Atomic Workers v. Department of Energy, until it was fixed by the amendments in 2007 — Davy and others like him were denied recovery of their costs. If he’d sought the fees a few years earlier, he would have had an easier time under the “catalyst theory,” dominant until Buckhannon, under which a party was entitled to fees so long as his request prompted the documents’ release. And if Davy were to seek fees in such a situation now, the 2007 amendments would likely pave a smoother path.

In any case, his battle finally looks to be over, with his lawyer’s bills paid. And the 2007 amendments appear likely to ameliorate the broader situation. But they’ve only now taken full effect; it is still an open question just how those reforms will impact FOIA court battles — particularly for requesters who, like Davy, litigated their requests during the five-year Buckhannon gap.

Public interest and the Kennedy assassination

In 1993, Davy sought from the CIA records related to the assassination of President John F. Kennedy. Rebuffed by the agency, he sued for the records in 2000. Two years later, after costly court appearances and filings but without a court ruling either way, the CIA gave up much of what Davy wanted.

The CIA won dismissal of the case, but Davy asked the U.S. District Court in Washington, D.C. for an award of his $27,000 legal bill. His request was denied on the grounds that he wasn’t actually a “prevailing party,” since the CIA technically turned over the records through a joint agreement.

Davy appealed. The appellate court in 2006 reversed, finding that the court order binding the CIA to abide by its agreement and release the records was in fact enough reason to designate Davy a “prevailing party.” In other words, the D.C. Circuit said, Davy met the Buckhannon standard.

The Court of Appeals sent the matter back down to the district level with directions for the judge to apply a four-part test to determine whether a substantially prevailing FOIA litigant is entitled to attorney’s fees.

The district court, considering those four factors — the public benefit derived from the case; the commercial benefit to the plaintiff; the nature of the plaintiff’s interest in the records; and the reasonableness of the agency’s withholding of the requested documents — found in 2007 that Davy failed the test because he had a commercial interest in obtaining the records because Davy was planning to write a book based on them. But book authors are not traditionally considered commercial users of FOIA.

With that, Davy went back up to the appeals court, where in December he won again. The court considered the public benefit derived from the case, the commercial benefit to the plaintiff, the nature of the plaintiff’s interest in the records and the reasonableness of the agency’s withholding of the requested documents.

Judge Judith Rogers, writing for the three-judge panel in the D.C. Circuit, found a crucial distinction between a plaintiff with “private commercial interests” and someone without such interests as, say, a journalist or scholar, seeking information for the public benefit. Davy’s 1999 book, “Let Justice Be Done,” on a Kennedy assassination conspiracy theory, was published prior to the release of the documents, Rogers pointed out, and to “the extent that Davy has a scholarly interest in publishing publicly valuable information in a book, his interest is at most ‘quasi-commercial’.”

“The mere intention to publish a book does not necessarily mean that the nature of the plaintiff’s interest is ‘purely commercial’,” Rogers said, calling Davy the “quintessential requestor of government information envisioned by FOIA.”

In his dissent, Circuit Judge A. Raymond Randolph called the four-factor test a “legal relic” that “draws an irrational line between news organizations and other commercial and non-commercial businesses and individuals.” He did not think Davy’s requested information would benefit the public, and said Davy did not even meet the burden of proving his lawsuit “produced something of value.”

“Davy asserts that new information came to light, but this consisted of the names of people who had obtained a clearance for classified material or the code names of already-known people and enterprises,” Randolph said. “This is the kind of data the populace would greet with a yawn.”

Judge David S. Tatel agreed that the four-factor test was “a somewhat crude mechanism” but said Davy’s “entitlement to fees is clear as day.”

The case was then sent was sent back to the trial court for the calculation of fees. However, the government still has time to ask the full D.C. Circuit court to rehear the decision.

A retroactive fix?

For now, the combined effect of Davy’s favorable ruling and the 2007 amendments might “help ease requesters’ minds” about some of the risks and costs of taking on FOIA litigation, said Adina Rosenbaum, an attorney who specializes in open government for the nonprofit consumer advocacy group Public Citizen.

The Buckhannon fix, as the attorney’s fees provision of the OPEN Government Act is known, may only have a direct impact on a small group of people, but FOIA attorney Jim Lesar said other requesters’ stronger willingness to go to court to “influence what a government agency does” may have more extensive effects.

Since requesters can often only front minimal funds for litigation, “the inability to command fees is certainly a major consideration whether litigation gets filed” in the first place, said Lesar, who said he frequently underwrites the entire cost of FOIA litigation for clients.

One question that remains unresolved is whether that Buckhannon fix is retroactive, and will apply to the small but increasingly burdened group of requesters who were stuck with fees during the five-year period when the catalyst theory was out of favor. Despite Davy’s latest win, there hasn’t been a decisive ruling on the matter, whether from the D.C. Circuit or anywhere else.

But Lesar said he is representing clients in cases in which the issue could be decided once and for all. Last April, for instance, a magistrate judge recommended that writer John Davis, seeking audiotapes of Mob boss Carlos Marcello’s trial, was entitled to attorney’s fees in a FOIA lawsuit that began more than two decades ago. But that case, Davis v. Department of Justice, is pending in district court, Lesar said, and nothing decisive has happened in the matter since then.