The opinion of the court was delivered by: GESELL
Plaintiff now applies for legal fees and expenses in this Freedom of Information Act (FOIA) case. Plaintiff had unsuccessfully sought under the Act any rules or guidelines of the Department of Justice governing the prosecution of individuals evading draft registration required by the Military Selective Service Act, 50 U.S.C. App. § 451 et seq.
Four documents pertinent to plaintiff's FOIA request were located but withheld by the Department as exempt from disclosure under FOIA exemptions 2 and 5. 5 U.S.C. § 552(b) (2) and (b) (5). Plaintiff filed its complaint on April 30, 1982. On August 17 and 18, 1982, two of the documents at issue were released by a government attorney to rebut a claim of selective prosecution in the case of United States v. Sasway, 686 F.2d 748 (9th Cir.). Sometime about September 3, the Department then released the same two documents to plaintiffs inasmuch as they were no longer private. On September 21, 1982, this Court issued an Order denying plaintiff's demand for the other two documents still at issue on the ground they were exempt under 5.
Plaintiff now seeks $7,776.00 in attorneys' fees and $94.20 in expenses on the ground it was a "prevailing party" under 5 U.S.C. § 552(a) (4) (E). Award of fees and expenses is denied.
Even if plaintiff could be said to have substantially prevailed, it would still be only eligible -- but not entitled -- to pursue some sort of attorneys' fee claim. Fund for Constitutional Government, supra at 870. Plaintiff's interest in the documents was primarily commercial (plaintiff publishes the Military Law Reporter, a legal reporting service). Plaintiff's suggested public benefit from disclosure of the documents -- "to provide the public with quality information concerning military affairs" -- is one that would seem to inure peculiarly to those individuals who have refused to register. Although this Court never reached the merits of the Department's claim of exemption as to the documents disclosed in Sasway, the Department's other claims of exemption were upheld. Finally, beyond the initial drafting of the complaint most if not all time spent by plaintiff's attorneys could, in any case, have had no affirmative effect on disclosure. These factors counsel that this Court, in any event, exercise its discretion against awarding plaintiff attorneys' fees. Cox v. United States Department of Justice, 195 U.S. App. D.C. 189, 601 F.2d 1, 7 (D.C. Cir. 1979). Accordingly, plaintiff's motion for award of attorneys' fees and expenses is denied.
For the reasons stated in the Court's Memorandum filed herewith, it is hereby
ORDERED that plaintiff's motion for award of attorneys' fees and costs is denied.
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