to the plaintiff's recovery of an interim award of attorney's fees in this case.
The government defendants' reliance on Letelier v. United States Dep't of Justice, 6 Media L. Rep. 2140, No. 79-1984 (D.D.C. Oct. 2, 1980), is misplaced. In Letelier, the plaintiff requested documents about herself and her deceased husband, a Chilean national assassinated in Washington, D.C. Unlike the plaintiff here, Mrs. Letelier filed for an interim award of attorney's fees when, subsequent to the filing of her case, the defendant agencies began producing documents. Significantly, however, the plaintiff had never prevailed in any motion filed before the court seeking a release of documents. Id. slip op. at 1. In fact, the court noted that "large numbers of documents are still being withheld in their entirety under claims of FOIA exemption." Id.
Thus it was in a very different context that this court noted that interim awards of attorney's fees would likely result in duplication of efforts, as awards would be sought "each time an agency releases some, but less than all, the requested documents." Id. slip op. at 2. Under the approach adopted by the court today, an award for interim attorney's fees is only available for work leading toward the threshold release of non-exempt documents. Any claims for fees resulting from a dispute over the applicability of a particular exemption to specific documents (a phase two dispute) would only be cognizable at the end of the litigation in question.
Some FOIA cases today involve huge numbers of documents and disputes that span many years. Ultimate success in these cases can depend almost entirely on the financial wherewithal of the plaintiff. Especially in cases involving documents of settled value to the public, as in this case, a denial of interim attorney's fees on threshold issues that are no longer seriously disputed would undermine the fundamental purpose of the Freedom of Information Act. This court simply cannot permit the government defendants to cling to the hollow notion of a potential appeal to deny an award of interim attorney's fees over settled issues.
For the foregoing reasons, the plaintiff's motion for an interim award of attorney's fees is granted with respect to the work performed in the threshold phase of this litigation. An appropriate order accompanies this opinion.
ORDER - April 4, 1989, Filed
This matter came before the court on plaintiff's motion for an interim award of attorneys' fees. Upon consideration of the plaintiff's motion, the opposition thereto, the entire record in this case, and for the reasons stated in the accompanying memorandum opinion, it is by the court this 4th day of April, 1989,
ORDERED plaintiff's motion for an interim award for attorney's fees is granted; and it is further
ORDERED that a status call shall be held in this matter on April 14th, 1989 at 9:30 a.m. to discuss a schedule for further proceedings in this matter; and it is further
ORDERED that parties shall be prepared to address the plaintiff's pending motion for discovery and defendants' pending motion for a protective order at this status call.