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ALLEN v. DOD

April 4, 1989

MARK A. ALLEN, Plaintiff,
v.
DEPARTMENT OF DEFENSE, et al., Defendants


Thomas A. Flannery, United States District Judge.


The opinion of the court was delivered by: FLANNERY

THOMAS A. FLANNERY, UNITED STATES DISTRICT JUDGE.

 Mark Allen, a researcher into the assassination of President John F. Kennedy, has filed for an interim award of attorney's fees in this Freedom of Information Act ("FOIA") case. Because the plaintiff is both "entitled" to and "eligible" for such an award in the first phase of this case and such an award is consistent with the public policy of FOIA, the court grants the plaintiff's motion. *fn1"

 I. Background

 Plaintiff's requests for the release of documents in this case were filed with the Central Intelligence Agency ("CIA") and the Defense Intelligence Agency ("DIA") between December 15, 1980 and April 6, 1981. This action was filed on October 21, 1981. The plaintiff sought access to records of any communications between the United States House of Representatives' Select Committee on Assassinations ("Committee") and the two intelligence agency defendants. *fn2"

 In a ruling on March 4, 1983, this court rejected a series of claims by the CIA that would have exempted from disclosure the entire stock of documents sought by the plaintiff. Allen v. Department of Defense, 580 F. Supp. 74 (D.D.C. 1983). Specifically, the defendant CIA argued that: 1) the documents were Congressional and hence not subject to FOIA disclosure; 2) the documents were not "improperly withheld under FOIA" because the CIA was complying with a custodial agreement it had reached with the Committee; 3) the documents were all exempt from FOIA as "interagency memorandum" (FOIA exemption no. 5). *fn3"

 This court substantially rejected these claims by dividing the documents in question into three groups: 1) preexisting agency records requested by and submitted to the Committee; 2) Committee generated material based on information provided by the CIA and DIA; and 3) agency generated materials in response to Committee requests. Id. at 78. This court then found that while congressionally generated documents (category #2) were exempt from FOIA disclosure, documents in the other two categories -- agency created documents prepared before the Committee existed (the overwhelming majority of the documents at issue) or agency created documents in response to the Committee's inquiries -- were not exempt from FOIA disclosure. *fn4"

 The court summarily rejected the CIA's second claim *fn5" and found that the claimed "category 5" objection was far too broad, ruling that "it was questionable whether the agency can demonstrate that preexisting agency records released to Congress fall within that exemption." *fn6" In the last footnote to its opinion, the court did note, however, that the agencies remained free to assert this (or any other) exemption with respect to particular documents. *fn7"

 The last ruling in this case before document production could begin in earnest involved the issue of a "waiver" from processing costs. Each of the plaintiff's original FOIA requests requested a waiver of these processing fees. This court ruled on August 24, 1984, that the plaintiff was entitled to a waiver of these fees with respect to documents processed by the CIA. *fn8"

 The collective effect of these rulings was to demonstrate the plaintiff's eligibility to receive all documents for which there was no specific exemption claim. According to the representations made by plaintiff's counsel and a representative from the CIA at oral argument on this motion, approximately one-third of the non-exempt documents in this case have been turned over to the plaintiff. *fn9"

 The attorney's fees provision of the FOIA provides: "The Court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case in which the complainant has substantially prevailed." 5 U.S.C. § 552 (a)(4)(E). The case law that has developed under this provision requires a party to be both "eligible" for an award of attorney's fees and "entitled" to it. Fund for Constitutional Government v. National Archives & Records Service, 211 U.S. App. D.C. 267, 656 F.2d 856, 870 (D.C. Cir. 1981).

 To be eligible for an award of attorney's fees, a party must be determined to have "substantially prevailed." Id. The issue in determining if a party has "substantially prevailed" is "largely a question of causation -- did the institution and prosecution of the litigation cause the agency to release the documents obtained during the pendency of the litigation?" Church of Scientology v. Harris, 209 U.S. App. D.C. 329, 653 F.2d 584, 587 (D.C. Cir. 1981) (emphasis in original).

 In turn, once a party has demonstrated eligibility, attorney's fees will be awarded if in the court's discretion that party is so entitled. Among the factors a court should consider in granting attorney's fees in a FOIA case are: 1) the public benefit derived from the case; 2) the commercial benefit to the successful plaintiff; 3) the nature of the successful plaintiff's interest in the records; and 4) whether the agency had a reasonable basis ...


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