The opinion of the court was delivered by: PARKER
In this Freedom of Information Act (FOIA)
case the plaintiff, a producer for a public television station, sought to obtain the files of the Federal Bureau of Investigation (FBI) concerning certain statements made by Ruth and David Greenglass during the investigation of the Rosenberg espionage case.
Plaintiff's original request encompassed the entire Rosenberg file and was submitted to the FBI by letter dated July 20, 1973. Plaintiff subsequently submitted a more narrow request for specific reports and statements taken from the Greenglasses by letter dated October 1, 1973. When the request was denied on the basis of the seventh exemption of investigatory files,
plaintiff's employer filed an appeal, but the agency denial was affirmed by the Attorney General's office. Almost a year later, plaintiff requested reconsideration of the earlier decision, by letter dated August 8, 1974. The Attorney General's office responded that the decision was final.
On June 16, 1975, plaintiff filed another administrative appeal, covering different portions of the Rosenberg file, and on June 19, 1975, filed this lawsuit, seeking the documents which had already been twice denied by the Justice Department. Shortly thereafter, on August 28, 1975, the FBI forwarded copies of the documents at issue to plaintiff's counsel.
At a recent status call held May 25, 1976, plaintiff's counsel informed the Court that he was satisfied with the documents produced, and that the only outstanding issue was the question of counsel fees and costs. Counsel then filed a motion for such fees on May 28, 1976, with accompanying memorandum, requesting compensation of $1,200.00 for 24 hours of work at the rate of $50.00 per hour plus $48.74 for expenses. The government responded with a motion to dismiss for mootness and a memorandum opposing the allowance of any fees, asserting that plaintiff has failed to meet the statutory criteria, or in the alternative that the $1,200.00 requested is excessive.
The recent amendments to the FOIA, which became effective on February 19, 1975, provide that counsel fees are available under the following circumstances:
The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.
The government's position is that since the FBI voluntarily released the requested documents without any direct order from the court, that plaintiff has not "substantially prevailed" within the meaning of the amendments. It is further alleged that dismissal of the action was possible for failure of the plaintiff to exhaust administrative remedies after the effective date of the amendments.
Finally, the government claims that the documents were in fact released on the basis of a policy decision of the Attorney General as to the Rosenberg files, and not as a result of plaintiff's lawsuit.
Plaintiff, on the other hand, has demonstrated that an award in this case would be in keeping with the Congressional purpose as expressed in the legislative history of the 1974 amendments. The original Senate version provided certain criteria to be considered in the grant of fees, including the benefit to the public deriving from the case, the commercial benefit to the complainant, and whether the government's withholding had a reasonable basis in law. Although these criteria were eliminated from the final bill, the conferees stated that they did not wish to preclude the courts from taking them into consideration. H.R.Rep.No.93-1380, 93rd Cong., 2nd Sess. at 9-10. Plaintiff points out that he is the producer of a documentary television show for public TV and a book on the Rosenberg case, and thus the information requested was for the benefit of the public, and not for plaintiff's personal commercial benefit.
He further alleges that attempts to obtain the documents since 1973 were unsuccessful until this lawsuit was filed, at which time the documents were sent to plaintiff's counsel, demonstrating that their production was a result of the suit.
The purpose of the provision for counsel fees was to encourage private citizens to bring to the attention of the courts any unlawful withholding of information by government agencies. Clearly, this purpose would be defeated and frustrated if plaintiffs were forced to forfeit their claim upon surrender of the materials before formal action by the judge. As Judge Thomas A. Flannery of this Court noted in a recent FOIA case in which a similar issue was raised:
If the government could avoid liability for fees merely by conceding the cases before final judgment, the impact of the fee provision would be greatly reduced. The government would remain free to assert boilerplate defenses, and private parties who served the public interest by enforcing the Act's mandates would be deprived of ...