Morley v. United States Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBlA
JEFFERSON MORLEY )
)
Plaintiff, )
)
v. ) Case No. 03-cv-2545 (RJL)
)
CENTRAL INTELLIGENCE AGENCY, )
) FILEo
Defendant. ) _]U|_ 2 3 2014
M C(§|Err:r§ :J.SihDist'rlct_& Bankruptcy
MEMORAND M OPINION or e Dastnc! of C0|umbla
(July @2014) [Dl699 F. Supp. 2d 244 (D.D.C. 20lO) ("Moz'ley 111 "); Morley
v. CIA, 453 F. Supp. 2d 137 (D.D.C. 2()06) ("Morley 1"), ajj"’a’ in part, rev ’d inpart, 508
F.3d 1108 (D.C. Cir. 2007) ("Morley 11"). lndeed, this is plaintiffs second request for
attomey’s fees, and the specific facts relevant to his fee request are detailed in Morley v.
CIA, 828 F. Supp. 2d 257 (D.D.C. 2011) ("Morley IV"), vacated, 719 F.3d 689 (D.C. Cir.
2013) ("Morley V"). Accordingly, a brief summary will suffice here.
Morley is a joumalist and news editor. Morley 11, 508 F.3d at 1113. On July 4,
2003, Morley submitted a request under FOIA to the CIA for "all records pertaining to
CIA operations officer George Efythron Joannides." Pl.’s Mot., Exh. 1 [Dkt. #135-3].
The letter makes clear that Morley sought information connected to President John F.
Kennedy’s assassination. See z`d. (explaining that the documents sought would "shed new
light on the assassination of President Kennedy on November 22, 1963"). The CIA
responded in the beginning of November, 2003, with a letter explaining that the National
Archives and Records Administration ("NARA") had a public collection ofCIA records
related to the JFK assassination, which was searchable online. Pl.’s Mot., Exh. 2 [Dl965 F.2d 1092,
1093 (D.C. Cir. 1992). , superseded by statute on other grouna's, ()PEN Government Act
of2007, Pub. L. No. 110~175, 121 Stat. 2524, 1 concluded that Morley was not so
enriried, Morley tr, 328 F. Supp. 2d ar 265-66.‘
Morley appealed. The Circuit vacated and remanded with instructions to "apply
the four-factor standard in a manner consistent with Davy [v. CIA, 550 F.3d 1155 (D.C.
Cir. 2008)]," a case in which our Circuit "recently elaborated on one of the four factors,
the public-benefit factor.” Morley V, 719 F.3d at 690. The opinion did not mention this
Court’s analysis of any of the other three factors. Morley has now filed a Renewed
Motion for an Award of Attorney’s Fees and Costs.z Pl.’s Mot.
ANALYSIS
FOIA permits a court to "assess against the United States reasonable attomey fees
and other litigation costs reasonably incurred in any case under this section in which the
complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). The FOIA attomey
fee provision was not designed as a "reward for any litigant who successfully forces the
government to disclose information it wished to withhold." Nationwide Bldg. Maz`nt., 1nc.
v. Sampson, 559 F.2d 704, 711 (D.C.Cir. 1977). Instead, it has "a more limited
purpose-to remove the incentive for administrative resistance to disclosure requests
l ln its original opposition to Morley’s fee request, the CIA did not contest whether Morley is eligible to
receive attorney’s fees, the other requirement a plaintiff must fulfill to receive an award. See Morley 1 V,
828 F. Supp. 2d at 261 (citing Wez`sberg v. US. Dep’t ofJustice, 745 F.2d 1476, 1495 (D.C. Cir. 1984)).
2 Plaintiff s Unopposed Motion for Leave to File Renewed Motion for Award of Attomey’s Fees Out of
Time [Dkt. #134] is granted, as is Plaintiff"s Motion for Leave to File Supplemental Mcmorandum [Dkt.
#141].
based not on the merits of exemption claims, but on the knowledge that many F01A
plaintiffs do not have the financial resources or economic incentives to pursue their
requests through expensive litigation." Ia’. With this limited purpose in mind, a plaintiff
seeking fees must satisfy a two-part inquiry. See Wez`sberg v. U.S. Dep ’t of Justice, 745
F.2d 1476, 1495 (D.C. Cir. 1984). The plaintiff must be both "eligible” for an award, in
that he has "substantially prevailed,"3 and "entitled" to an award. Id.
A court in this Circuit analyzing whether a plaintiff is "entitled" to a fee award
must consider at least the following four 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) whether the government has a reasonable basis for withholding the
requested information." Cotton v. Heyrnan, 63 F.3d 1115, 1117 (D.C. Cir. 1995). No
single factor is given dispositive weight,‘l and legislative history demonstrates that
Congress intended courts to retain "broad discretion when considering a request for
attomey fees." Natz`onwz'a’e Bldg. Maint., 559 F.2d at 714.
When it remanded this case to me for reconsideration, our Circuit Court noted its
elaboration on the public benefit factor in Davy v. CIA, 550 F.3d 1155 (D.C. Cir. 2008),
and instructed me "to apply the four-factor standard in a manner consistent with Davy."
Morley V, 719 F.3d at 690. Accordingly, 1 have reviewed the facts, new briefing, and
3 1n response to plaintiff s renewed motion for fees, the CIA does contest whether plaintiff is eligible.
Def`. Opp’n at 6-7. F or the reasons described herein, 1 conclude that plaintiff is not entitled to fees, and do
not consider the eligibility question.
4 Of course, "where the government can show that information disclosed after initial resistance was
nonetheless exempt from the FOIA a plaintiff should not be awarded attomey fees under section
552(a)(4)(E)." Natz'onwide Bla’g. Maint., 559 F.2d at 712 n.34.
relevant law in this case, including Davy. Further consideration of our Circuit’s
elaboration on the public benefit factor in Davy, however, does not alter my original
conclusion that "this litigation has yielded little, if any, public benefz`t-certainly an
insufficient amount to support an award of attomey’s fees." Morley 1 V, 828 F. Supp. 2d
at 262.
A. Public Beneflt Factor
Evaluation of the public benefit factor "requires consideration of both the effect
of the litigation for which fees are requested and the potential public value of the
information sought." Davy, 550 F.3d at 1159. Although "[t]he release of any government
document benefits the public by increasing citizens’ knowledge of their government,"
Congress did not intend for this vague benefit to entitle a plaintiff to fees. Fenster v.
Brown, 617 F.2d 740, 744 (D.C. Cir. 1979). lnstead, the public benefit factor weighs in
plaintiffs favor "where the complainant’s victory is likely to add to the fund of
information that citizens may use in making vital political choices." Ia’. (internal
quotation marks 0mitted).
When it remanded this case, the Circuit noted that Davy "concerned a request for
records related to President Kennedy’s assassination" and had stated "that records ‘about
individuals allegedly involved in President Kennedy’s assassination[] serve[] a public
benefit."’ Morley V, 719 F.3d at 690 (quoting Davy, 550 F.3d at 1159) (alteration in
original). However, the Davy court did not make a broad statement that all records
"about individuals allegedly involved in President Kennedy’s assassination" benefit the
public. 550 F.3d at 1159. lnstead, its conclusion was a much more limited, case-specific
one that "[t]he information Davy requested-about individuals allegedly involved in
President Kennedy’s assassination-serves a public benefit." Davy, 550 F.3d at 1159
(emphasis added). The Davy Court’s description of the documents at issue does not
create a category of records that automatically satisfy the first factor based on a plaintiffs
claims ofa relationship to the assassination. The Court must look deeper.
Indeed, analysis of the public benefit factor is a fact-based and document-specific
inquiry that must be undertaken on a case-by-case basis. See Cotton, 63 F.3d at 1 120
("The only way to comport with this directive is to evaluate the specific documents at
issue in the case at hand."). Although Morley and Davy are similar plaintiffs in that they
both sought documents regarding individuals they claimed were related to the Kennedy
assassination, the factual circumstances are sufficiently distinct so as to support different
conclusions on the public benefit in their respective cases.
1n Davy, everyone5 agreed with-or at least did not contest_the fact the released
documents provided "important new information bearing on the controversy over former
[District Attorney Jim] Garrison’s contention that the CIA was involved in the [Kennedy]
assassination plot." Ial. at 1159 (intemal quotation marks omitted) (first alteration in
original). Here, however, the importance of the new information released as a result of
Morley’s FOIA request is fiercely contested. See Def.’s Opp’n at 8-l9.
5 This includes this Court, which had concluded below that "this factor favors the plaintif ." Davy v. C1A,
496 F. Supp. 2d 36, 38 (D.D.C. 2007).
The information that the CIA released pursuant to Morley’s FOIA request can be
placed into two broad categories: documents that the CIA previously had transferred to
NARA and documents it had not. The CIA agrees that the released records identical to
the ones transferred to NARA are "unquestionably assassination-related" and "ordinarily
would give rise to public benefit." Id. at 10-1 1. But these documents already were in the
public domain and available for consumption at the National Archives. Whether
documents are already in the public domain may be irrelevant on the merits of a FOIA
request, but that fact can be taken into consideration when evaluating entitlement to
attorney’s fees. See T ax Analysts, 965 F.2d at 1094; Davy, 550 F.3d at 1159 (noting that
"[a]t least one of the requested documents was not previously available to the public"
when finding that the public benefit factor favored plaintiff). Here, the ClA’s release to
Morley of records identical to those publicly available at the National Archives (with a
searchable index online) does not further the public benefit.
Accordingly, Morley emphasizes four records not previously publicly available to
support his claim that the public benefit factor weighs in his favor. Pl.’s Mot. at 24-27.
The first two are "travel" documents Morley originally claimed demonstrate that
Joannides traveled to New Orleans on two specific dates-April 1, 1964, and May 20,
1964. 1a’. at 24-25; see Pl.’s Mot., Attachments 1-2 [Dkt. #135-1; 135-2]; Pl.’s l\/lot.,
Morley Decl. 1118-9 [Dkt. 135-9]. This, Morley argued, demonstrates Joannides was
performing CIA activities in some way related to the Warren Commission’s investigation
of the assassination. Pl.’s Mot. at 24-25. 1n response, the govemment pointed out,
correctly, that although the documents were signed on the dates in question, they indicate
only that New Orleans was Joannides’s "home leave residence" and shed no light on
where Joannides was on any particular date. Def. Opp’n at 14; see Pl.’s Mot.,
Attachments 1-2. Morley now argues that the mere fact that Joannides may have been in
New Orleans at some point between 1962 and 1964 is new information related to the
Kennedy assassination because Lee Harvey Oswald was also in New Orleans during that
period. Reply to Def.’s Opp’n at 10-11.
Morley also relies on a photograph and citation relating to the Career intelligence
Medal Joannides received in 1981 after he had retired from the C1A.6 Pl.’s l\/lot., Morley
Decl. 111110-13; Eighth Decl. of J . Morley, Attaehment 2 [Dkt. #l 19-1]. The citation
declares the medal was awarded "in recognition of [Joannides’s] exceptional achievement
with the Central Intelligence Agency for more than twenty-eight years." Eighth Decl. of
J. Morley, Attaehment 2. Morley argues that by awarding Joannides a medal for his
£L¢
service over the totality of his career, the CIA is reflecting its approval of his conduct
as it related to the JFK assassination issues he dealt with"’ at particular points during his
career. Pl.’s Reply to Def.’s Opp’n at 7 (quoting Eighth Decl. of J. Morley 114).
Unfortunately for plaintiff, recognition of "overall career performance," Eighth Decl. of
J. Morley, Attaehment 2, upon retirement does not reflect institutional approval of any
specific action an employee undertook during that career.
6 My review of the record does not reveal any filing of the photograph with this Court, only the citation
and a record of the ceremony that notes a photographer was present. See Eighth Decl. of J. Morley,
Attaehment 2 [Dkt. #119-1].
'l`he CIA does not dispute that these four records convey newly-released
information not already in the public domain. But nothing other than pure speculation
connects any of it to the Kennedy assassination. What do the new documents Morley
points to tell us? Joannides had a home leave residence in the same city where
Kennedy’s assassin conducted some activities, and the two may-or may not_have been
in that city at the same time. Joannides was recognized for a long career of service in the
ClA, and the CIA did not condemn him for any particular Kennedy-assassination-related
activities in a way that prevented positive recognition for his overall career. That is about
it. This information is not "likely to add to the fund of information that citizens may use
in making vital political choices." Fenster, 617 F.2d at 744 (intemal quotation marks
omitted).
My evaluation of the significance of this information to the public also takes into
consideration the language the Morley V Court highlighted from a footnote in Davy:
"‘[P]laintiffs who obtain information that, while arguably not of immediate public
interest, nevertheless enables further research ultimately of great value and interest, such
as here the public understanding of a Presidential assassination"’ should not be foreclosed
from fees. Morley V, 719 F.3d at 690 (quoting Davy, 550 F.3d at 1162 n.3). 1 do not
interpret the Davy Court’s footnote as holding that every new piece of information
released pursuant to a FOIA request benefits the public because it may, someday, in some
way, contribute to research on a matter of public import. The public benefit factor
requires more than speculation of an unknown potential future benefit. Again, plaintiff
here has pointed to nothing in the newly-released information demonstrating an actual
relationship to the Kennedy assassination or any other topic of "great value and interest."l
1n concluding that this litigation has benefited the public only slightly, if at all, 1
do not pass any judgment on the importance of information regarding Joannides’s
relationship with Oswald, the Kennedy assassination, or the Warren Commission. 1 am
focused on the particular documents at issue in this case. See Cotton, 63 F.3d at 1120.
Here, the new documents released to the public shed very little, if any, light on
Joannides’s involvement in the events surrounding the Kennedy assassination. Plaintiff
has not provided the Court with anything beyond conjecture in arguing their relevance
and importance.
B. Four Factor Standard
Our Circuit Court directed me to reevaluate the four factor standard in light of
Davy’s elaboration on the public benefit factor. Morley V, 719 F.3d at 690. My analysis
of the other factors remains the same.g ln short, without repeating the analysis here,
Morley had "a sufficient private interest in pursuing these records without attorney’s
fees" (second and third factors) and the "CIA has advanced reasonable legal positions"
7 Morley raises a number of additional arguments as to why the public benefits here, none of which are
persuasive. First, he argues that the news media has shown interest in covering the disclosed records.
Pl.’s Mot. at 28-30. But he fails to tie that coverage to any of the newly-released documents rather than
those that were already available to the public. He also contends that the public leamed about documents
the CIA continues to withhold. Pl.’s Reply at 12-13. As 1 stated previously, these documents were
withheld properly under FO1A. See Morley 111, 699 F. Supp. 2d at 252-59. Finally, he argues that this
case sets an important precedent by requiring the CIA to search and produce operational records. Pl.’s
Reply at 13-14. However, "the establishment of a legal right to information [is not] a public benefit for
the purpose of awarding attomeys’ fees." Chesapeake Bay Found., 1nc. v. Dep ’t of A gric., 108 F.3d 375,
377 (D.C. Cir. 1997) (citing Cotton, 63 F.3d at ll20).
8 Indeed, my previous analysis of the second and third factors already directly cites Davy. Morley 1 V, 828
F. Supp. 2d at 264.
10
(fourth factor). Morley 1 V, 828 F. Supp. 2d at 265. When considering all four factors
together, any public benefit that may exist from this litigation is insufficient to support an
award of attorney’s fees, particularly because the fourth factor "weighs strongly in favor
ol` the ClA." 1d. Plaintiff, therefore, is not entitled to attomey’s fees.
CONCLUSION
Thus, for all the foregoing reasons, plaintiffs Renewed Motion for Attorney’s
Fees and Costs [Dkt. #135] is DENIED. An appropriate order shall accompany this
Memorandum Opinion.
United States l 1strict Judge
ll