Two victories for government in FOIA fee award disputes

Plaintiffs are not retroactively entitled to attorney’s fees in Freedom of Information Act lawsuits filed before the Open Government Act was enacted 2 1/2 years ago, a federal appellate court ruled this week.

The U.S. Court of Appeals in the District of Columbia ruled Tuesday in favor of two government agencies that were sued before President George W. Bush signed the Open Government Act into law on Dec. 31, 2007.

The act, which was aimed at giving the public greater access to government information, makes it easier for plaintiffs to recover attorney’s fees. Prior to the act, only FOIA plaintiffs who were awarded relief by a court could recover such fees.  The act broadened that language by adding that plaintiffs could also recover fees if their lawsuits led to “a voluntary or unilateral change in position by the agency.”

In Judicial Watch v. Bureau of Land Management and John Davis v. U.S. Department of Justice, both plaintiffs argued that this expanded language made them eligible for fee awards. But the appellate court ruled that the timing of the lawsuits was problematic.

Judicial Watch, for instance, made its request in March 2007 for communications records between the Bureau of Land Management and the Nevada congressional delegation regarding a transaction that involved federal lands. Judicial Watch sued six months later to compel the records’ disclosure. The bureau eventually turned over the records and the parties settled the dispute in 2008.

Judicial Watch attorney Michael Bekesha argued that the watchdog group’s case did not require a retroactive application of the law because the parties’ dispute continued after the act took effect. The lower court agreed and awarded Judicial Watch $3,605 in attorney’s fees.

However, the appeals court ruled that awarding those fees would increase the government’s liability for conduct that occurred before the Open Government Act became law. “We conclude that application of the 2007 Act to these facts would have impermissible retroactive effects,” the court wrote.

Meanwhile, the Davis case involved more than $112,000 in attorney’s fees from litigation that stretches back more than two decades.

John Davis sued the Justice Department after it denied his 1986 request for tape recordings of an investigation into an alleged New Orleans mob boss. After the Justice Department released many of the requested tapes in 1995 and another in 1999, a judge dismissed the lawsuit in 2007.

Davis argued that awarding attorney’s fees in his lawsuit was not a retroactive application of the 2007 act because the law’s broadened standard for awarding fees in FOIA cases simply reinstated a standard previously used by the District of Columbia appeals court until 2001, when it was rejected by the Supreme Court. Thus, Davis argued that the new law simply restored — rather than increased — the Justice Department’s liability for past conduct,

But the appellate court disagreed with that argument, stating that even when Congress intends to supersede case law, "its intent to reach conduct preceding the ‘corrective’ amendment must clearly appear."