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May 30, 1997

RALPH HOAR & ASSOCIATES, et al., Plaintiffs,

The opinion of the court was delivered by: KESSLER

 This matter is before the court on Plaintiffs' Motion for Award of Reasonable Attorneys' Fees and Costs [# 30] pursuant to 5 U.S.C. § 552(a)(4)(E). Plaintiffs filed this Freedom of Information Act ("FOIA") action on May 23, 1995, seeking the release of crash test videotapes of Chrysler minivans and related materials from Defendant National Highway Traffic Safety Administration ("NHTSA"). NHTSA eventually released the videotapes and information without being ordered to do so by the Court. Plaintiffs contend that they are prevailing parties within the meaning of FOIA's attorneys' fees provision and request attorneys' fees and costs associated with the suit and the preparation of their fee petition. Upon consideration of the Motion, the Opposition thereto, the Reply, the various supplemental pleadings filed herein, the applicable case law, and the entire record in this case, the Court concludes that Plaintiffs' Motion must be granted.

 I. Background

 Plaintiff Ralph Hoar & Associates ("RHA") is an organization that represents several families of victims of Chrysler minivan accidents involving the liftgate latch. The individual Plaintiffs are parents of children who were injured when the liftgate latch of a Chrysler minivan popped open during an accident. Compl. PP 3-5.

 In September 1993, NHTSA's Office of Defects Investigation ("ODI") began investigating whether the rear liftgate latches on Chrysler minivans were defective. By October 1994, NHTSA had received reports of 65 ejections, including 21 fatalities and 45 injuries, and had amassed other evidence, including its own internal test data, showing the existence of a safety defect in the latches. After conducting some investigations, ODI determined that the "the latch is a safety defect that involves children." Copy of Materials shown to Chrysler Officials, Pls.' Ex. C, at 2, 20, 58.

 NHTSA and Chrysler met on October 27, 1994. At that time, Chrysler informed NHTSA that, although it was not convinced that the minivans had a safety defect, it might undertake a voluntary recall if NHTSA shared its internal analysis and tests with Chrysler. Decl. of Kathleen DeMeter P 6, Attached to Def.'s Mot. for Protective order; NHTSA Letter to Lewis Goldfarb (Nov. 10, 1994), Pls.' Ex. D. By letter dated November 10, 1994, NHTSA informed Chrysler that, "although NHTSA does not ordinarily share the results of its analysis or testing with a manufacturer before the completion of an [engineering analysis]", it was prepared to do so to attempt to persuade Chrysler to conduct a voluntary recall of the minivans. Goldfarb Letter; DeMeter Decl. PP 6-7.

 On November 17, 1994, ODI staff met with Chrysler officials in Washington, D.C. NHTSA officials briefed Chrysler on the status of the investigation and described the data analysis and testing that it had already performed. ODI also showed a videotape of excerpts from filmed crash tests performed by NHTSA on Chrysler and other minivans. DeMeter Decl. P 8. Although Chrysler officials were permitted to take notes, they were not allowed to take any of the materials prepared by ODI with them at the conclusion of the meeting. Second Decl. of Kathleen DeMeter P 8, Def.'s Ex. A. NHTSA still did not inform the public of ODI's preliminary conclusion that a safety defect existed in the latches.

 NHTSA's efforts failed to convince Chrysler to undertake a voluntary recall. On January 31, 1995, Chrysler issued a press release in which it claimed that NHTSA's crash tests, still undisclosed to the public, were "flawed". Jan. 31, 1995, Chrysler Press Release, Pls.' Ex. F.

 On February 1, 1995, RHA submitted a FOIA request to NHTSA for access to "all documentation that to date supports NHTSA's defect investigation of Chrysler minivan liftgate latches", including "all agency analyses and crash tests that have been disclosed to Chrysler". Letter to Dr. Martinez, Pls.' Ex. H. On February 21, 1995, NHTSA denied the request, claiming that all of the information was exempt under FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A). That exemption allows an agency to withhold "investigatory records compiled for a law enforcement proceeding," but only to the extent that disclosure "could reasonably be expected to interfere with enforcement proceedings". By letter dated March 14, 1995, RHA appealed the denial of its request. RHA claimed that since the purpose of Exemption 7(A) is to "prevent harm to the government's 'case in court' . . . by not allowing litigants 'earlier or greater access' to agency investigatory files than they would otherwise have", disclosure of information already shown to Chrysler would not interfere with that purpose. FOIA Appeal, Pls.' Ex. K.

 Meanwhile, NHTSA and Chrysler worked toward a resolution that would not require a formal recall. NHTSA and Chrysler agreed that the company would replace the latches on its minivans at no charge to minivan owners. The replacement offer would be part of a voluntary "service campaign" rather than a recall. In exchange for that promise, NHTSA agreed that it would not issue a formal determination that the problem was a safety-related "defect" requiring a recall under federal law. 2d DeMeter Decl. P 12.

 On March 27, 1995, both NHTSA and Chrysler issued press releases announcing that Chrysler had voluntarily agreed to provide a cost-free replacement of the latches as part of a service campaign. Id. ; Mar. 27, 1995, NHTSA Stmt., Pls.' Ex. N. The NHTSA press release stated that it intended to work with Chrysler to ensure that Chrysler minivan owners would be made aware of the campaign and avail themselves of the opportunity to have the new latches installed. The statement further stated that NHTSA's investigation would remain open so that NHTSA could monitor Chrysler's campaign. Mar. 27, 1995 NHTSA Stmt.

 Chrysler's press release stated that NHTSA had not concluded that the latches were defective and that "Chrysler minivans are among the safest of all minivans." It further stated that Chrysler would begin notifying minivan owners of its offer to replace the latches "by the end of the week" and that the new latches would be available within "several months." March 27, 1997, Press Release, Pls.' Ex. P. Chrysler also launched a national advertising campaign, stressing that it undertook the service campaign not because its minivans were unsafe, but because of "concerns" about the safety of the latches that may have been generated in the media. See Wall Street Journal (March 28, 1995), Pls.' Ex. Q; New York Times, Pls.' Ex. L. Chrysler intended to use latches already in use in model year 1995 minivans to replace the potentially hazardous latches in the earlier model minivans.

 Because NHTSA had not ordered a recall, the notice that Chrysler sent to consumers did not have to state that the problem with the latches was a safety related defect or disclose the risk associated with the defect. See 49 U.S.C. § 30119. Chrysler sent a form letter dated March 31, 1995, to minivan owners, stating that Chrysler's decision to conduct the service campaign was based on its desire to give owners peace of mind because of "recent and highly visible media coverage questioning the safety of liftgate latches on 1984-1994 Chrysler . . . minivans" which "may have raised concern among some of the four million owners of [these] minivans." The letter went on to state that NHTSA had been unable to conclude "that a safety defect exists with minivan latches" and that the minivans were completely safe. Chrysler Letter to Minivan Owners, Pls.' Ex. S.

 In early April 1995, NHTSA identified a new problem with the remote release solenoid, a component of the latch on model year 1995 minivans. 2d DeMeter Decl. P 14. On April 27, 1995, NHTSA and Chrysler announced that Chrysler would expand its service campaign to include the solenoid and the additional 1.5 minivans manufactured in 1995. Apr. 27, 1995, NHTSA Stmt., Pls.' Ex. U; 2d DeMeter Decl. P 14. However, this problem required that the remote release latches be extensively redesigned. 2d DeMeter Decl. P 14; Decl. of William A. Boehly P 6, Def.'s Ex. B.

 RHA's FOIA appeal was denied on April 25, 1995. NHTSA claimed that the release of the information shown to Chrysler would interfere with NHTSA's efforts to gather information by "unduly focussing public attention on the alleged defect in the Chrysler minivans." However, the agency stated that it would release the test reports to the public at the conclusion of its investigation. Pls.' Ex. X.

 Plaintiffs brought this FOIA action in May 1995, seeking to compel NHTSA to disclose crash test videotapes of Chrysler minivans and related materials. Chrysler filed a motion to intervene as a defendant.

 On July 10, 1995, the Court held a hearing on Chrysler's motion. At that hearing, Chrysler's attorney asserted that releasing the tapes before implementation of the service campaign would lead to public criticism of Chrysler because Chrysler was not ready to install new latches in 4.3 million affected minivans. Counsel stated that "the demand to get replacements will so outstrip ability to make the replacements, that further concern and critical disruption will be made." Tr. of July 10, 1995, Hr'g at 19-20, Pls.' Ex. Y, Def.'s Ex. F. *fn1"

 The Court denied Chrysler's motion to intervene and expressed concern that the litigation proceed because of the safety issues involved. The Court observed that the Plaintiffs' arguments in favor of release as soon as possible were "strong." Id. at 20-26. At that time, counsel for Plaintiffs explained that NHTSA had agreed to give Plaintiffs a list of the materials shown to Chrysler at the November 1994 meeting and that Plaintiffs wished to take discovery to garner support for their position that the materials were not exempt from disclosure pursuant to FOIA Exemption 7(A). The Court then set a briefing schedule on the discovery issue. Id. at 25-28.

 Several days before NHTSA's Reply brief in support of its motion for a protective order was due, NHTSA proposed a "stay" of the litigation while the agency tested Chrysler's replacement latch. See Tr. of Aug. 28, 1995, Hr'g at 1-6, Pls.' Ex. AA, Def.'s Ex. G. NHTSA stated that it would close its investigation after it performed metallurgical tests on the replacement latch, rather than waiting until it was assured that enough minivan owners had in fact had their latches replaced. Id. at 6-7. At that time, Chrysler had not yet even notified any van owners that they could have their latches replaced and had yet to replace a single latch. Id. at 10. NHTSA successfully tested prototypes of the replacement latches on August 10, 1995. 2d DeMeter Decl. P 19.

 Although NHTSA was satisfied that the replacement latches met its safety concerns, it would not close the investigation without a commitment from Chrysler that the company would conduct its service campaign in a way that would result in a large number of minivan ...

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