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ALLIANCE FOR RESPONSIBLE CFC POLICY v. COSTLE

April 7, 1986

ALLIANCE FOR RESPONSIBLE CFC POLICY, INC., Plaintiff,
v.
Douglas M. COSTLE, et al., Defendants



The opinion of the court was delivered by: GASCH

 GASCH, Senior District Judge.

 This is an action under the Freedom of Information Act (FOIA) for disclosure of documents held by the Environmental Protection Agency (EPA). Currently before the Court is plaintiff's request for an award of $15,146 in attorneys' fees under 5 U.S.C. § 552(a)(4)(E) (1982).

 I. BACKGROUND

 In 1980, the EPA announced that it was examining whether to regulate the production of chlorofluorocarbons (CFCs). On October 17, 1980, the EPA published an advance notice of proposed rulemaking regarding CFC production and requested that all comments on the proposed rulemaking be submitted by January 5, 1981. See 45 Fed.Reg. 66726 (Oct. 7, 1980).

 When the potential for new regulation of CFCs became clear, a group of CFC producers and users formed plaintiff. On November 13, 1980, an attorney for the law firm representing plaintiff made a FOIA request to the EPA which sought production of all documents related to the proposed rulemaking. On December 24, 1980, after the EPA failed to respond within the statutory time period, plaintiff filed the instant suit.

 The case was resolved with a minimum of judicial involvement. The first disclosures were made on January 15, 1981, and substantial amounts of documents were released during the following months. On two occasions plaintiff alerted the government to inadequacies in the document search, and each time the government responded promptly and to plaintiff's apparent satisfaction. In addition, material withheld by the government was discussed at two conferences held pursuant to Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), and the government's withholding was not challenged by plaintiff. The Court's involvement in the case was limited to monitoring disclosure in status conferences. The case was dismissed by stipulation in October, 1981.

 II. DISCUSSION

 A. Eligibility

 Whether a party has "substantially prevailed" and thus is eligible for an award is "largely a question of causation." Weisberg, 745 F.2d at 1496. Where, as here, there has been no court order compelling agency disclosure, the complainant "must show that the prosecution of the action could reasonably be regarded as necessary to obtain the information . . . and that a causal nexus exists between that action and the agency's surrender of that information." Cox v. Department of Justice, 195 U.S. App. D.C. 189, 601 F.2d 1, 6 (D.C.Cir.1979). Thus, while a court order compelling disclosure is not required, "more than post hoc, ergo propter hoc must be shown." Public Law Education Inst. v. Department of Justice, 240 U.S. App. D.C. 166, 744 F.2d 181, 183 (D.C.Cir.1984).

 Plaintiff argues that the EPA's recalcitrance in responding to the FOIA request necessitated this suit and that there was a causal connection because the EPA was prodded into releasing documents only after this case was brought. Defendant asserts that delay in disclosure was caused by the onerous breadth of the FOIA request and by the fact that the request was processed by the same small staff that was simultaneously receiving hundreds of comments on the proposed CFC regulation. For these reasons, defendant argues, the plaintiff did not "substantially prevail."

 While plaintiff did obtain disclosure of numerous documents, "the mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation." Weisberg, 745 F.2d at 1496. Courts must consider other factors, such as whether the agency made a good faith effort to discover and disclose material, whether the scope of the request caused a delay in disclosure, and whether the agency was burdened by other duties that delayed its response. See id.; Cox, 601 F.2d at 6; Crooker v. Federal Bureau of Prisons, 579 F. Supp. 309, 311 (D.D.C.1984).

 While it is a close question, on balance these factors weigh against finding that plaintiff "substantially prevailed." The facts indicate that the EPA's failure to make prompt disclosure was not due to bad faith or intentional delay. The FOIA request was undeniably broad and required searches by several departments within the EPA. Moreover, those groups also were engaged in processing, reading, and evaluating comments on a proposed rulemaking. Thus, the EPA's failure to disclose in timely fashion appears to be "an unavoidable delay accompanied by due diligence in the administrative processes" and not the result of agency intransigence. Cox, 601 F.2d at 6; see also Crooker v. Department of Treasury, 213 U.S. App. D.C. 376, 663 F.2d 140, 142 (D.C.Cir.1980) (per curiam); Lovell v. Department of Justice, 589 F. Supp. ...


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