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NORTHWEST COALITION v. BROWNER

May 12, 1997

NORTHWEST COALITION FOR ALTERNATIVES TO PESTICIDES, et al., Plaintiffs,
v.
CAROL BROWNER, Defendant and AMERICAN CROP PROTECTION ASSOCIATION, Intervenor.


JAMES ROBERTSON, United States District Judge


The opinion of the court was delivered by: ROBERTSON

By order dated October 11, 1996, the court ordered defendant EPA to release the common names and chemical abstract numbers (CAS) of inert ingredients in six pesticides, after finding that the information was not entitled to protection under Exemption 4 of the Freedom of Information Act, 5 U.S.C. § 552(b)(4). Plaintiff now moves pursuant to 5 U.S.C. § 552(a)(4)(E) for attorney's fees in the amount of $ 166,107.90 and costs in the amount of $ 5,319.96. Defendant EPA opposes the motion, arguing that plaintiffs are neither eligible for costs nor entitled to the award they seek and arguing further that the amount of the award sought is unreasonable. *fn1"

 Procedural History

 Plaintiffs, two public interest organizations, submitted a FOIA request to EPA seeking the Confidential Statements of Formula for six pesticides. *fn2" The request noted plaintiffs' "particular interest in the identity of inert ingredients, as opposed to percentages of ingredients." EPA denied plaintiffs' request on the grounds that the records requested contained trade secrets, or commercial or financial information, entitled to protection under Exemption 4. After plaintiffs filed an administrative appeal, EPA released partial copies of the Confidential Statements of Formula for Weedone LV4, Garlon 3A and Tordon 101, blacking out the identities and CAS number of the inert ingredients, except for the ingredient "water" in Garlon 3A. EPA withheld in their entirety the Confidential Statements of Formula for the three other pesticides.

 What plaintiffs' lawsuit achieved was an order requiring EPA to release the common names of twenty-two of the twenty-four inert ingredients, and the CAS numbers of twenty of the twenty-four, because the information had been previously disclosed by the manufacturers, or because there was insufficient showing of competitive harm, or for both reasons.

 Analysis

 FOIA provides for the award of attorneys fees and costs in any case in which "the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E). To obtain an award, an applicant must demonstrate (1) that the applicant "substantially prevailed" in the litigation and is thus "eligible" for an award; and (2) that the applicant is entitled to fees under a separate inquiry. Weisberg v. United States Dept. of Justice, 270 U.S. App. D.C. 233, 848 F.2d 1265, 1268 (D.C. Cir. 1988).

 1. Eligibility

 A party has "substantially prevailed" if its shown that the lawsuit was "reasonably necessary" to obtain the information and "substantially caused the requested records to be released." Chesapeake Bay Foundation v. Dept. of Agriculture, 304 U.S. App. D.C. 167, 11 F.3d 211 (D.C. Cir. 1993), cert. denied, 513 U.S. 927, 130 L. Ed. 2d 277, 115 S. Ct. 315 (1994). In this case, EPA resists a finding of eligibility because, it argues, disclosure of the requested information did not result directly from this litigation. EPA asserts the majority of the information ordered disclosed was "already public" before the action was filed.

 EPA's argument is unpersuasive. This litigation was not "unnecessary" in the sense that plaintiffs' dispute with EPA could have been resolved without filing suit. See, e.g., Murty v. OPM, 707 F.2d 815, 816 (4th Cir. 1983)(lawsuit not necessary where telephone inquiry as to status of request would have produced same result); Weisberg v. United States Dept. of Justice, 240 U.S. App. D.C. 339, 745 F.2d 1476 (D.C. Cir. 1984)(party did not prevail where numerous FOIA requests outstanding at time of suit). EPA refused to disclose the requested information before the suit was filed and withdrew its assertion of confidentiality as to the identities of some inert ingredients only after plaintiffs uncovered previous public disclosures of the requested information and documented those discoveries in their pleadings. See Public Law Educ. Inst. v. Department of Justice, 240 U.S. App. D.C. 166, 744 F.2d 181, 183-84 & n.4 (D.C. Cir. 1984); Cuneo v. Rumsfeld, 180 U.S. App. D.C. 184, 553 F.2d 1360, 1364 (D.C. Cir. 1977). As for the remaining ingredients, there can be no dispute that the October 11, 1996 order directly caused the release of the requested information.

 2. Entitlement

 Four considerations must be weighed in determining entitlement: (a) the public benefit derived from the case; (b) the commercial benefit to the plaintiff; (c) the nature of plaintiff's interest in the records; and (d) whether the government had a reasonable basis for withholding the requested information. Chesapeake Bay Foundation, supra, 11 F.3d at 216. EPA concedes that the second and third factors weigh in plaintiffs' favor, but disputes the application of the first and fourth factors.

 Public benefit. The public benefit prong is satisfied if the "complainant's victory is likely to add to the fund of information that citizens may use in making vital choices." Cotton v. Heyman, 314 U.S. App. D.C. 161, 63 F.3d 1115, 1120 (D.C. Cir. 1995). The analysis requires an evaluation of the specific documents at issue. 63 F.3d at 1120. Plaintiffs argue that, as a result of the court's ruling in this case, "information concerning the health risks of pesticides" will be made available to the public. Plaintiffs also assert that the court's ruling has important precedential value for ensuring the future release of information. EPA responds that "precedential effect" is an improper consideration in weighing the public benefit and that the disclosure of the inert ingredients contributed little to the public good.


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