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September 26, 1986


The opinion of the court was delivered by: GASCH


 On April 30, 1975, a member of the Republic of New Afrika ("RNA") sent a letter to the Federal Bureau of Investigation ("FBI") requesting the release of certain information pertaining to, inter alia, the FBI's dealings with the RNA. Three and one-half years later, the RNA and two individuals filed a lawsuit against the FBI under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1982), in order to obtain documents which the agency was stated to have improperly exempted or failed to recognize. This Court granted the government's motion for summary judgment. Republic of New Afrika v. Federal Bureau of Investigation, et al., Memorandum, No. 78-1721 (D.D.C. July 29, 1985) ("Memorandum").

 The Court's holding was based upon an in camera inspection of materials, selected by the plaintiffs, to determine whether the FBI had properly invoked FOIA exemptions. In recognition of the time constraints on the Court, the plaintiffs agreed that the Court's conclusions regarding this representative sample would govern all of the claims raised in their complaint. The Court's decision that the FBI had provided all the materials to which the plaintiffs had a right pursuant to FOIA foreclosed any further action by plaintiffs.

 Despite this adverse decision, plaintiffs (hereinafter "the RNA") now petition for an award of attorney fees and costs under FOIA. The RNA claims that although this Court found the FBI had properly withheld material under the exemptions, the lawsuit against the government nevertheless caused the release of thousands of other pages of FBI materials previously withheld, thereby making the plaintiffs eligible for and entitled to an award of fees and costs. After a thorough consideration of the facts and the applicable law, the Court finds that such an award would not comport with the statutory design of FOIA and so denies the RNA's request for relief.


 The Freedom of Information Act provides that a District 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.

 5 U.S.C. § 552(a)(4)(E) (1982). The parties agree that application of this provision requires a two-pronged inquiry: 1) have the petitioners demonstrated that they are "eligible" candidates for attorney fees, and if so, 2) are they "entitled" to receive such an award? Weisberg v. U.S. Department of Justice, 240 U.S. App. D.C. 339, 745 F.2d 1476, 1495 (D.C. Cir. 1984), reh'g denied, 246 U.S. App. D.C. 175, 763 F.2d 1436 (1985); Fund For Constitutional Government v. National Archives and Records Service, 211 U.S. App. D.C. 267, 656 F.2d 856, 870 (D.C. Cir. 1981).

 A. Eligibility

 Under the express terms of FOIA, a recovery of attorney fees depends upon a court's concluding that a petitioner has "substantially prevailed" in its efforts to obtain materials under the statute. Weisberg, 745 F.2d at 1496. To substantially prevail, the petitioner must prove that 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).

 1. Requirement that RNA's Action to Obtain FOIA Documents Was Reasonably Necessary

 When probing whether it is reasonably necessary for one requesting FOIA information to file a lawsuit against an agency, a court must bear in mind that necessity can be determined only from the perspective of a reasonable person in the FOIA petitioner's circumstances at the time of filing. See Fund for Constitutional Government, 656 F.2d at 872. Considering the circumstances of this case, a reasonable party in the RNA's place would have found it necessary to file a lawsuit.

 In its earlier opinion, the Court found that the FBI did release a significant number of documents to the RNA, Memorandum, supra, No. 78-1721, at 2 n.2. Nevertheless, the RNA concluded that the FBI had not searched its files for certain information clearly within its original FOIA request and questioned the FBI's authority to withhold these items. The RNA was confronted by a situation where it had to either accept the FBI's determinations concerning what the agency would process and release, or it had to compel the FBI to reevaluate its position. From the RNA's perspective, initiation of a lawsuit was reasonably necessary -- perhaps the only means ...

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