agency's failure to comply with statutory deadlines does not automatically imply that suit was "necessary." Vermont Low Income, 546 F.2d at 513. See also Fund for Constitutional Government v. National Archives, 211 U.S. App. D.C. 267, 656 F.2d 856, 871 (D.C. Cir. 1981). It is equally plausible, based on the chronology of this case, to assume that routine administrative inertia or unavoidable delay in identifying and assembling the information requested was the reason for defendants' belated compliance. In addition, because plaintiffs were simultaneously pursuing non-FOIA claims concerning matters related to the information sought, it is reasonable to infer that documents would have been produced in any case during the normal course of discovery.
Plaintiffs are not entitled to fees even if they substantially prevailed
Assuming arguendo that plaintiffs satisfied the threshold for eligibility by having "substantially prevailed," they would still not be entitled to an award of fees under FOIA. The statute's legislative history clearly reveals that the fee provision was designed for limited purposes -- as an incentive to good faith administrative disclosure and to encourage suits that benefit the public interest, LaSalle Extension University v. FTC, 201 U.S. App. D.C. 22, 627 F.2d 481, 484 (D.C. Cir. 1980) -- not as a reward for all successful litigants. Nationwide, 559 F.2d at 711. In exercising its discretion to award fees, the court must consider at least four factors, along with any other relevant circumstances: 1) the benefit to the public, 2) the commercial benefit to the plaintiff, 3) the nature of plaintiff's interest in the records sought, and 4) whether the government's withholding had a reasonable basis in law. Cox, 601 F.2d at 7.
Here, the court finds that the benefit to the public from the disclosure of these records is minimal. Plaintiffs' personnel files in particular are of no public interest, nor is the VRA information of substantial public significance. Plaintiffs cannot inflate the importance of their FOIA claims by association with the other claims in this action pertaining to waste, fraud, mismanagement, and personnel violations at the PTO. While "the release of any government document benefits the public by increasing citizens' knowledge of their government[, . . .] Congress did not have this sort of broadly defined benefit in mind." Fenster v. Brown, 199 U.S. App. D.C. 158, 617 F.2d 740, 744 (D.C. Cir. 1979).
Moving to the second and third factors, the court finds that plaintiffs were not motivated by commercial gain in their FOIA action, which cuts in their favor. However, their interests were personal, rather than scholarly, journalistic, or public-interest oriented, and it is the latter types of motivations that are most compelling in assessing the propriety of a FOIA fee award. See Nationwide, 559 F.2d at 712. Clearly, plaintiffs wanted the PTO information in order to support their other claims: that Mr. Simon's removal was improper and that both he and Mr. Aydt were subjected to improper treatment in retaliation for exercising their first amendment rights. These personal motives would have prompted plaintiffs to pursue the release of documents regardless of the availability of fees under FOIA. See Fenster, 617 F.2d at 743.
In assessing the fourth factor, the reasonableness of the government's position, the court finds that while there was undeniably delay, there was never any "withholding" of documents. The government never refused to release documents or asserted a frivolous legal defense to plaintiffs' action. Cf. Fund for Constitutional Government, 656 F.2d at 871; Nationwide, 559 F.2d at 716 (resort to litigation before encountering absolute resistance to disclosure may preclude a fee award). As discussed above, while an agency's failure to meet deadlines is not to be condoned, it does not warrant an award of fees in and of itself. Here, without evidence of bad faith, the court declines to impose a fee award to sanction sluggish agency response. Cf. LaSalle Extension University, 627 F.2d at 485-86 (fees denied where agency's alleged obduracy in resisting disclosure for four months was deemed insufficient to outweigh other factors).
This case presents another troublesome consideration for the court, in that FOIA seems to have been used as a substitute for civil discovery on the removal and first amendment claims. Such use of FOIA is not proper and this court will not encourage it by awarding fees. See Baldrige v. Shapiro, 455 U.S. 345, 360 n.14, 71 L. Ed. 2d 199, 102 S. Ct. 1103 (1982); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975); Nationwide, 559 F.2d at 712. In these circumstances, fees are not necessary in order to vindicate the underlying policies of FOIA and encourage plaintiffs to persevere with meritorious document requests.
Plaintiffs are not entitled to an award of attorneys' fees under FOIA because they did not "substantially prevail" and because, in the exercise of its discretion, the court does not find that an award of fees in this case would advance the goals that FOIA was designed to serve. Accordingly, the court will issue an order of even date herewith, denying plaintiffs' motion for attorneys' fees and costs.
For the reasons stated in the accompanying opinion of even date herewith, it is by the court this 16 day of July, 1984,
ORDERED that plaintiffs' motion for attorneys' fees and costs under the Freedom of Information Act is denied.