Citizens for Responsibility and Ethics in Washington v. U. S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON,
Plaintiff,
v. Civil Action No. 10-750 (JEB)
U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION AND ORDER
In February and March of 2010, Citizens for Responsibility and Ethics in Washington
(CREW) submitted two Freedom of Information Act requests to the Department of Justice’s
Office of Legal Counsel. After failing to obtain the documents it had requested, CREW filed a
Complaint initiating the instant suit. On August 2, 2010, Judge Richard J. Leon, to whom this
case was previously assigned, issued a Scheduling Order requiring, inter alia, that OLC complete
its processing and produce certain responsive documents by a specified date. OLC ultimately
complied with this order, and CREW has not challenged any of its withholdings. The parties
filed a Joint Stipulation of Dismissal approximately nine months later, leaving only the issue of
attorney fees and costs. Because the Court finds that CREW substantially prevailed in its suit
and that the multi-factor entitlement inquiry favors a fee award, it will grant Plaintiff’s Motion
for Attorney Fees and Costs. The actual amount due shall be determined at a subsequent date.
I. Background
On February 26, 2010, CREW submitted a FOIA request to OLC. See Mot., Exh. E
(Letter from Anne Weismann, Feb. 26, 2010). CREW sought 1) “a copy of all record keeping
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guidance issued to staff of the [OLC] from January 2000 to present concerning how electronic
records, including email, are to be treated for purposes of federal record keeping laws,” and 2) “a
copy of all records indicating, reflecting, or commenting on any problems with the storage or
retention of emails of OLC staff, including but not limited to former Assistant Attorneys General
John Yoo and Patrick Philbin, from January 2000 to July 2009.” Id. at 1. Claiming “a particular
urgency to inform the public about the circumstances underlying the destruction of the emails of
former high-ranking OLC officials, including Messrs. Yoo and Philbin,” CREW requested
expedited processing. Id. at 4.
Less than a week later, on March 3, CREW sent a second FOIA request to OLC. See
Mot., Exh. I (Letter from Anne Weismann, Mar. 3, 2010). With this request, CREW sought “a
copy of all emails sent to or from former Assistant Attorney General John Yoo from June 2001
through May 2003.” Id. at 1. This time, it did not seek expedited processing. See id.
OLC responded to the February 26th request by a letter dated March 16, eighteen days
after that request had been submitted. Mot., Exh. F (Letter from Paul P. Colborn, Mar. 16,
2010). It acknowledged receipt of CREW’s request and advised CREW that its request for
expedition had been granted under a regulation “applicable to requests involving ‘[a] matter of
widespread and exceptional media interest in which there exist possible questions about the
government’s integrity which affect public confidence.’” Id. (citing 28 C.F.R. 16.5(d)(l)(iv)
(2008)) (alteration in original). OLC also suggested that CREW consider narrowing the scope of
its request to speed up processing. Id. The letter did not mention the March 3rd request. See id.
During a subsequent phone call, CREW and OLC discussed the February 26th request and
agreed that its two parts — the first concerning recordkeeping guidance and the second
concerning storage or retention problems with Yoo’s and Philbin’s email — would be processed
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separately. See Mot. at 5. OLC also advised CREW that it did not anticipate locating documents
responsive to the second part of CREW’s request. Id. There was no discussion of CREW’s
March 3rd request during this call. See id.
OLC produced two documents responsive to the first part of the February 26th request on
April 16, 2010. See id., Exh. G (Letter from Paul Colborn, Apr. 16, 2010). Having received no
further communication from OLC regarding the second part of its February 26th request and no
response at all regarding the March 3rd request, CREW filed the Complaint in this case on May
11, 2010 (seventy-five days after the initial request had been filed and twenty-five days after the
last communication from OLC). See Mot. at 5-7. On June 8, 2011, Judge Leon issued a Case
Management Order requiring the parties to meet and confer and file a joint statement setting
forth, inter alia, a proposed scheduling order. See ECF No. 3. The parties conferred and
submitted a Joint Status Report on July 12, 2010. See ECF No. 5. The parties were unable in the
Report to reach an agreement on the timetable for OLC to complete its processing of the March
3rd request. See id.
While the Report was pending before Judge Leon, on July 23, OLC advised CREW that
it had no documents responsive to the second part of the February 26th request, “thereby
confirming what it had orally advised CREW more than four months earlier” and “le[aving] no
outstanding issues concerning [that] request.” Mot. at 6; id., Exh. H (Letter from Paul Colborn,
July 23, 2010). On August 2, Judge Leon issued a Scheduling Order consistent with the
timetable suggested by OLC:
It is hereby ORDERED that OLC will, no later than August 31,
2010, (1) complete processing those responsive documents yielded
by the search of OLC's records that do not require referral or
consulation; (2) produce responsive non-referred documents except
those it withholds on the basis of a FOIA exemption; (3) circulate
documents that do require referral or consultation to the relevant
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agencies or departments; and (4) confer with CREW on a timetable
for the referrals and for the production of a Vaughn index for
withheld documents.
Scheduling Order, August 2, 2010. OLC complied with the terms of this Scheduling Order,
producing 201 non-referred documents on August 31 and, consistent with the timetable agreed
upon by the parties, producing 25 referred documents on September 30 and a draft Vaughn index
on October 22.
CREW did not challenge any of OLC’s withholdings or redactions, and, by stipulation of
the parties, this action was dismissed on June 9, 2011. See Joint Stip. of Dismissal, ECF No. 6.
That same day, Plaintiff filed the instant Motion for Attorney Fees and Costs. 1
II. Analysis
FOIA provides that courts “may assess against the United States reasonable attorney fees
and other litigation costs reasonably incurred in any case . . . in which the complainant has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i); see Brayton v. Office of the U.S. Trade
Rep., 641 F.3d 521, 524 (D.C. Cir. 2011). “This language naturally divides the attorney-fee
inquiry into two prongs, which our case law has long described as fee ‘eligibility’ and fee
‘entitlement.’” Brayton, 641 F.3d at 524 (citing Judicial Watch, Inc. v. U.S. Dep’t of
Commerce (“Judicial Watch I”), 470 F.3d 363, 368-69 (D.C. Cir. 2006)). The Court,
accordingly, must first decide whether Plaintiff has “substantially prevailed” and is therefore
“eligible” to receive fees. See id.; Judicial Watch I, 470 F.3d at 368; Negley v. FBI, 2011 WL
4793143, at *1 (D.D.C. Oct. 11, 2011). If Plaintiff is “eligible,” the Court must then “consider[]
a variety of factors” to determine whether it is “entitled” to fees. Id.; Judicial Watch I, 470 F.3d
at 369; Davy v. CIA (“Davy II”), 550 F.3d 1155, 1158 (D.C. Cir. 2008). Otherwise stated, the
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In deciding this Motion, the Court has considered Plaintiff’s Motion, Defendant’s Opposition, and
Plaintiff’s Reply.
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Court will first determine whether Plaintiff may receive fees, and, if so, it will then decide
whether it should receive them. See Brayton, 641 F.3d at 524.
A. Eligibility
The OPEN Government Act of 2007, Pub. L. No. 110-175, § 4(a), 121 Stat. 2524,
amended the attorney-fee provisions of FOIA to provide that “a complainant has substantially
prevailed” and, consequently, is eligible for a fee award “if the complainant has obtained relief
through either — (I) a judicial order, or an enforceable written agreement or consent decree; or
(II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not
insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). Plaintiff may thus demonstrate its eligibility in one
of two ways, and it argues here that it is eligible both because it obtained relief through a
judicial order and because Defendant unilaterally changed its position on a “not insubstantial”
claim. Because the Court finds that Plaintiff is eligible on the former ground, it need not reach
the latter.
Plaintiff identifies the August 2, 2010, Scheduling Order as a judicial order through
which it obtained relief. Although Judge Leon adopted the schedule proposed by DOJ, the
Order nonetheless required Defendant to complete processing of and produce all non-referred,
non-exempt documents by a specified date. See Scheduling Order, August 2, 2010. Our Circuit
has found that a similar Scheduling Order qualified a plaintiff as eligible for fees in Davy v.
CIA (“Davy I”), 456 F.3d 162 (D.C. Cir. 2006). In Davy I, the court concluded that the plaintiff
had substantially prevailed on the basis of a joint stipulation and order because the order
“changed the ‘legal relationship between [the plaintiff] and the defendant’” and granted the
plaintiff “some relief on the merits of his claim.” Id. at 165 (quoting Buckhannon, 532 U.S. at
604) (alteration in original). Just as in Davy I, the Scheduling Order in this case changed the
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legal relationship between the parties because prior to its issuance DOJ “was not under any
judicial direction to produce documents by specific dates; the . . . order changed that by
requiring the Agency to produce all responsive documents by the specified dates.” Id. at 166.
“If the Agency failed to comply with the order it faced the sanction of contempt.” Id.; see also
Judicial Watch v. FBI (“Judicial Watch II”), 522 F.3d 364, 367-70 (D.C. Cir. 2008) (following
Davy I and finding plaintiff to be a substantially prevailing party on basis of joint stipulation
and order that required documents to be released by date certain).
Defendant seeks to distinguish Davy I and Judicial Watch II on the ground that the
August 2, 2010, Scheduling Order adopted the schedule that it had proposed (as opposed to
Plaintiff’s proposed schedule). See Opp. at 11-14. This is a distinction without a difference.
No matter who made the proposal ultimately adopted, the order changed the legal relationship
between the parties, requiring Defendant to produce documents by August 31, 2010, or face
sanctions and providing Plaintiff with the relief it sought — the documents responsive to its
requests. See Judicial Watch II, 522 F.3d at 370 (holding that order to which government
stipulated sufficed for eligibility). Despite Defendant’s attempt to characterize the order as
mere “housekeeping,” it does not simply “require the parties to meet and confer and then submit
a joint status or scheduling report.” Opp. at 13 n.7. It affirmatively requires the processing and
production of documents by a date certain. See Campaign for Responsible Transplantation v.
FDA, 511 F.3d 187, 197 (D.C. Cir. 2007) (when court adopts an order “requiring the agency to
release documents, the legal relationship between the parties changes”). And Defendant’s
suggestion that CREW did not obtain the relief it sought because it desired the “immediate”
release of documents and “immediate” release was not ordered, see Opp. at 14, is an attempt to
split hairs even more finely. A party must “substantially prevail,” not “precisely prevail”; as a
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result, it need not obtain an order granting relief in language identical to that used in its
complaint. See Edmonds v. FBI, 417 F.3d 1319, 1326-27 (D.C. Cir. 2005) (sufficient that
plaintiff has “succeed[ed] on any significant issue in litigation, achieving some of the benefits
the parties sought in bringing the suit”).
The Court, therefore, finds that Plaintiff has substantially prevailed and is thus eligible to
receive a fee award under FOIA.
B. Entitlement
The inquiry, however, does not end there. Because Plaintiff is “eligible” for an attorney-
fee award under FOIA, the Court must now determine whether it is “entitled” to receive one.
The goal of this analysis is to ensure that attorney fees are distributed in a manner consistent
with the purpose of FOIA’s fee provision, which “‘was not enacted to provide a reward for any
litigant who successfully forces the government to disclose information it wished to withhold.’”
Davy II, 550 F.3d at 1158 (quoting Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704,
711 (D.C. Cir. 1977) (citing S. REP. NO. 93-854, at 17 (1974))). Instead, it “‘had a more limited
purpose to remove the incentive for administrative resistance to disclosure requests based not on
the merits of exemption claims, but on the knowledge that many FOIA plaintiffs do not have the
financial resources or economic incentives to pursue their requests through expensive
litigation.’” Id. (quoting Nationwide, 559 F.2d at 711 (citing S. REP. NO. 93-854, at 17)).
With this purpose in mind, the Court must make a determination as to attorney-fee
entitlement by considering at least four different factors: “(1) the public benefit derived from
the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the
records; and (4) the reasonableness of the agency's withholding of the requested documents.”
Id. at 1159; see also Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092, 1093 (D.C. Cir.
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1992); Negley, 2011 WL 4793143, at *1. No single criterion is dispositive, see Davy II, 550
F.3d at 1159, and “[t]he sifting of those criteria over the facts of a case is a matter of district
court discretion.” Tax Analysts, 965 F.2d at 1094 (citing Church of Scientology v. Harris, 653
F.2d 584, 590 (D.C. Cir. 1981)).
As a threshold matter, it is uncontested that factors (2) and (3) — the “commercial
benefit” and “plaintiff’s interest” factors, which “are closely related and often considered
together,” id. at 1095 — favor CREW. See Opp. at 15 n.8. CREW is a nonprofit corporation
“committed to protecting the rights of citizens to be informed about the activities of government
officials and to ensuring the integrity of government officials.” Compl., ¶ 4. In furtherance of
this enterprise, CREW freely and publicly disseminates those records it acquires through FOIA
requests. See id. As an entity that “‘gathers information of potential interest to a segment of the
public, uses [its] editorial skills to turn the raw materials into a distinct work, and distributes that
work to an audience,’” CREW is “among those whom Congress intended to be favorably
treaded under FOIA’s fee provision.” Davy II, 550 F.3d at 1161-62 (quoting Tax Analysts, 925
F.2d at 1095). Because CREW derived no commercial benefit from its requests and sought
these records in its public-interest capacity, therefore, the second and third factors militate
strongly in favor of a fee award.
That an entity lacked a commercial motive for making a FOIA request, however, cannot
be the end of the analysis. CREW’s status as a nonprofit, public-interest organization does not
entitle it to a government-signed blank check for its FOIA-related litigation always and
everywhere. Indeed, the public benefit and the agency’s reasonableness must also be
considered.
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Like factors two and three, the first factor — the “public benefit derived from the case”
— also weighs in CREW’s favor. This factor “requires consideration of both the effect of the
litigation for which fees are requested and the potential public value of the information sought.”
Id. at 1159. In evaluating this criterion, it is important to note that “[t]he simple disclosure of
government documents does not satisfy the public interest factor.” Alliance for Responsible
CFC Policy, 631 F. Supp. 1469 (D.D.C. 1986) (citing Fenster v. Brown, 617 F.2d 740, 744 (D.C.
Cir. 1979)). Instead, the court must determine whether “the complainant’s victory is likely to
add to the fund of information that citizens may use in making vital political choices.” Cotton v.
Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995) (quoting Fenster, 617 F.2d at 744) (internal
quotation marks omitted).
The two FOIA requests at issue in this case concern information related to a controversy
of significant public import. Investigations into President George W. Bush’s administration’s
policy concerning torture resulted in a report from DOJ’s Office of Professional Responsibility
that stated that many of the emails sent by Yoo and Philbin were “deleted and . . . reportedly not
recoverable” and that OPR’s investigation was “hampered” by the loss of these records. See
OPR, Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to
the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques,” July 29, 2009
(published February 19, 2010), available at
http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf. Prominent government
figures expressed concern about the missing emails, see, e.g., Mot., Exh. B (Eric Lichtblau,
Justice Dept. Reveals More Missing E-Mail Files, N.Y. TIMES, February 26, 2011) (Patrick
Leahy, Chairman of the Senate Judiciary Committee, characterized the missing emails as raising
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“serious concerns about government transparency”), and various media outlets covered the story.
See, e.g., Mot., Exh. D (various news stories concerning the missing emails).
CREW’s requests were clearly intended to ferret out more information about the missing
emails. The first, which was filed just seven days after the publication of the OPR report
revealing that emails were missing, sought information regarding normal procedures for storing
email and any documented email-storage irregularities. See Weismann Letter, Feb. 26, 2010.
The second, which was filed a week later, sought all existing emails sent to or from Yoo during
his tenure at OLC. See Weismann Letter, Mar. 3, 2010. CREW sought fee waivers for both
requests on the ground that “the requested records [were] likely to contribute to the public’s
understanding of the extent to which the emails of John Yoo have been destroyed.” Weismann
Letter, Mar. 3, 2010, at 2; see also Weismann Letter, Feb. 26, 2010, at 2. In particular, the first
request was intended to “inform the public about whether and to what extent the destruction of
these email[s] may have violated DOJ policy and federal laws,” Weismann Letter, Feb. 26, 2010,
at 2, and the second was intended to determine “to what extent the destruction of emails was
limited to Mr. Yoo’s role in drafting the terror memoranda and may have been the result of
willful actions.” Weismann Letter, Mar. 3, 2010.
In granting CREW’s request for expedited processing of the February 26th request, DOJ
acknowledged that the question involved was a “matter of widespread and exceptional media
interest in which there exist possible questions about the government’s integrity, which affect
public confidence.” Colborn Letter, Mar. 16, 2010. The requested documents, moreover, were
not available to the public prior to CREW’s requests. See Davy II, 550 F.3d at 1159-60 (“The
fact that some of the material turned over to [Plaintiff] concerns an event of national importance
and is newly released is a key distinction between this case and the litigation at issue in Tax
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Analysts.”); cf. Tax Analysts, 965 F.2d at 1094 (approving district court’s reasoning that “[t]he
fact that the information obtained was previously available publicly also distinguishes this case
from most other FOIA cases involving news organizations”). As a result of its efforts, they are
now publicly available on its various websites.
DOJ’s primary argument that its disclosures did not benefit the public is that CREW
issued a press release that stated that the emails it obtained “shed[] no light on Mr. Yoo’s role in
drafting the torture memos or, indeed, on anything Mr. Yoo may have done while at DOJ.” See
CREW, “Found” John Yoo Emails Shed No Light on What Mr. Yoo Did for the Department of
Justice, October 25, 2010, available at http://www.citizensforethics.org/press/entry/found-john-
yoo-emails-shed-no-light-on-department-of-justice. Although the headline of this press release
superficially appears to contradict CREW’s claim that its requests benefited the public, DOJ’s
argument is premised on a misunderstanding of the purpose of the requests. CREW did not
expect the email to expose substantive information about Yoo’s work at DOJ; instead, as the
request itself makes clear, “[d]isclosure of the volume and subject of Mr. Yoo’s existing email
records . . . would inform the public about whether and to what extent the destruction of emails
was limited to Mr. Yoo’s role in drafting the terror memoranda and may have been the result of
willful actions by Mr. Yoo or others.” Weismann Letter, March 3, 2010, at 2. The fact that the
remaining emails had little to do with Yoo’s substantive activities at OLC, therefore, is precisely
the kind of information CREW hoped to glean from its requests. That only mundane or
unrelated email survived, CREW maintains, suggests that the missing emails concerning the
torture memoranda were destroyed willfully. See Mot. at 14-15. In other words, that the “emails
shed no light on what Mr. Yoo did for the Department of Justice” itself sheds light on the extent
to which email may have been purposefully destroyed.
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The fourth factor — the reasonableness of the agency’s withholding — is a closer call.
This factor requires consideration of “whether the agency’s opposition to disclosure ‘had a
reasonable basis in law,’ Tax Analysts, 965 F.2d at 1096, and whether the agency ‘had not been
recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior,’ LaSalle
Extension, 627 F.2d [481,] 486 [(D.C. Cir. 1980)].” Davy II, 550 F.3d at 1162. Significantly,
the burden remains with the agency: “The question is not whether [Plaintiff] has affirmatively
shown that the agency was unreasonable, but rather whether the agency has shown that it had
any colorable or reasonable basis for not disclosing the material until after [Plaintiff] filed suit.”
Id. at 1163.
OLC has not identified such an explanation for its failure to disclose. FOIA requires
agencies to notify the requester about whether it will comply with a request within twenty
business days of its receipt. See 5 U.S.C. § 552(a)(6)(A)(i). In “unusual circumstances,” an
agency may extend its response time by ten working days, but must provide the requester with
notice of those circumstances and identify a date by which the agency will complete processing.
§ 552(a)(6)(B). It is undisputed that OLC failed to meet these deadlines, and it has not provided
any “reasonable basis in law” for doing so. See Tax Analysts, 965 F.2d at 1096. Indeed, the
government did not provide any response whatsoever to CREW’s second request until after this
suit was filed. While OLC was working with CREW on the first request and the delay does not
seem to have resulted from bad faith on its part, the agency’s failure even to respond is hardly
reasonable.
Although Defendant is correct that “an agency’s failure to meet deadlines . . . does not
warrant an award of fees in and of itself,” Simon v. United States, 587 F. Supp. 1029, 1032
(D.D.C. 1984) (emphasis added), considering this failure in conjunction with the other three
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factors, the Court finds Plaintiff is entitled to a fee award. Ultimately, a line must “be drawn
between the plaintiff who seeks to advance his private commercial interests and thus needs no
incentive to file suit, and a newsman who seeks information to be used in a publication or the
public interest group seeking information to further a project benefitting the general public.”
Davy II, 550 F.3d at 1158 (citing Nationwide, 559 F.2d at 712-13). All things considered, the
Court finds that Plaintiff in this case falls decidedly on the latter side of that line.
Although the Court agrees that CREW has prevailed and is entitled to fees, the question
of the appropriate amount is a separate issue. The Court will afford the parties, as frequent
adversaries, an opportunity to resolve the issue themselves. If their efforts are unavailing, the
Court will make the determination.
III. Conclusion
For the foregoing reasons, the Court ORDERS that:
1. Plaintiff’s Motion for Attorney Fees and Costs is GRANTED; and
2. The parties shall jointly call chambers on November 3, 2011, at 11:00 a.m. to discuss
procedures regarding the calculation of the fee award.
SO ORDERED.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 26, 2011
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