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National Security Archive v. U.S. Dep't of Defense

January 15, 2008

NATIONAL SECURITY ARCHIVE, PLAINTIFF,
v.
U.S. DEPARTMENT OF DEFENSE, DEFENDANT.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

This matter is before the Court on Plaintiff's Motion For Attorneys' Fees and Costs. Plaintiff, National Security Archive, moves for an award of attorneys' fees and costs, pursuant to 5 U.S.C. § 552(a)(4)(E),*fn1 for reimbursement of the fees expended to litigate this Freedom of Information Act ("FOIA") case against the United States Department of Defense. For the following reasons, the motion will be denied.

BACKGROUND

The National Security Archive ("NSA") is a non-profit organization that collects and publishes information relating to national security and foreign policy issues. To accomplish its organizational mission, the NSA requests information from various departments of the federal government under FOIA. In 1986-87, the Archive asked the United States Department of Defense ("Department" or "DoD") to recognize that it was entitled to preferred fee status under FOIA as either an "educational institution" or a "representative of the news media." See 5 U.S.C. § 552(a)(4)(A)(ii)(II). If granted preferred fee status, the Archive would be eligible to obtain DoD documents for non- commercial use without paying for the accompanying search and review costs. Pursuant to the regulations it had adopted governing fee-waivers, the DoD denied the Archive's request.

After the request was denied, the Archive filed this action challenging the DoD's fee-waiver decision under FOIA Amendments of 1986. The Court granted summary judgment for DoD, upholding the Department's determination that the Archive was ineligible for fee-waiver status under 5 U.S.C. § 552(a)(4)(A)(ii)(II). See Nat'l Sec. Archive v. United States Dep't of Defense, 690 F. Supp. 17 (D.D.C. 1988) ("NSA I"). On appeal, the court of appeals reversed, holding that the Archive qualified for fee-waiver status under FOIA. While the court of appeals agreed with the Court's finding that the Archive was not an educational institution, it held that the Archive qualified for fee-waiver status as a representative of the news media. See Nat'l Sec. Archive v. United States Dep't of Defense, 880 F.2d 1381, 1382 (D.C. Cir. 1989) ("NSA II"). Subsequent petitions by the DoD for a rehearing by the court of appeals and a petition for a writ of certiorari to the Supreme Court of the United States were denied. See United States Dep't of Defense v. Nat'l Sec. Archive, 494 U.S. 1029 (1990). Following the denial of the petition for a writ of certiorari, the Archive filed the instant motion seeking attorneys' fees and costs pursuant to FOIA's fee-shifting provision. See 5 U.S.C. § 552(a)(4)(E).

DISCUSSION

NSA Is Not Entitled to Attorneys' Fees

I. Introduction

This is an unusual case because NSA's success did not lead to any documents being released. Thus, there was no benefit to the public in the traditional sense of the disclosure of documents pertaining to matters of public concern. Instead, NSA established in this case that it was to be relieved of any obligation to pay the search costs for its FOIA requests.

II. NSA's Position

NSA, a not-for-profit organization that subsists on grants from charitable foundations and other donors, Plaintiff's Supplemental Memorandum in Support of Its Request for Attorneys' Fees and Costs ("NSA Memo") at 10-11, is, as this case established, a news organization. According to NSA, that it charges a fee to its readers for the materials it produces does not disqualify it because scholars and journalists need not forego their right to have their attorneys' fees paid by the government for securing FOIA documents that they then publish. Id. at 10 (quoting Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 35 (D.C. Cir. 1998)).

NSA insists that the decision it secured has enabled it to secure a greater number of FOIA documents and to disseminate them more broadly than it would have been able to do had it not won this case. NSA Memo at 8. Since the documents it publishes deal with governmental analysis and decisions in matters of national security and foreign relations, it views its victory as directly advancing FOIA's goals of disseminating materials bearing on matters of great public interest.

III. The Government's Position

The government insists that NSA's being relieved of paying search costs did not benefit the public but only advanced NSA's own personal and commercial interests. According to the government, all NSA did was to obtain the right to shift the burden it would have had-to pay its own search fees-to the taxpayer. The government reasons, therefore, that awarding fees would have nothing to do with the central purpose of the attorney fees provision of FOIA: to lower the insurmountable burdens the average person faces in seeking information under FOIA. Defendant's Supplemental Memorandum In Opposition to Plaintiff's Motion for Attorney Fees ("Govt. Opp.") at 2-6.

IV. The Pertinent Factors

The parties are agreed that the following four factors must be considered in ascertaining whether a plaintiff who has prevailed*fn2 is entitled to an award of fees: (1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) whether the government has a reasonable basis for withholding the requested information. Govt. Opp. at 3; NSA Memo. at 6. "No single one of these factors is dispositive." NSA Memo at 6 (citing Piper v. U.S. Dep't of Justice, 339 F. Supp. 2d 13, 20 (D.D.C. 2004), aff'd, 222 Fed Appx 1, cert. denied, 128 S.Ct. 66 (2007). Instead, "'[t]he sifting of those criteria over the facts of a case is a matter of district court discretion[.]'" Govt. Opp. at 3 (quoting Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992).

The second and third factors, commercial benefit to the plaintiff and the plaintiff's interest in the records, are closely related and often considered together. Tax Analysts, 965 F.2d at 1095. Interestingly, because the only consequence of NSA's victory was being relieved of having to pay search fees, the first factor-the benefit to the public- coincides with the other two. Hence, the government argues that there was no public benefit whatsoever in NSA being relieved of paying search costs; to the contrary, the only benefit was a financial or commercial benefit that NSA achieved for itself. Govt. Opp. at 4-5.

V. The Case Law

To the government, Chesapeake Bay Foundation v. Department of Agriculture, 108 F.3d 375 (D.C. Cir. 1997), is controlling because that case established that NSA's saving money is "not the type of benefit that merits a fee award." Govt. Opp. at 4.

In Chesapeake Bay, the court of appeals concluded that the only fruit of the plaintiff's victory-that it did not have to pay postage to mail certain documents-"is hardly a significant public benefit." Chesapeake Bay, 108 F.3d at 377. But, that one sentence cannot support the propositions that only the disclosure of documents justifies a fee award and that a successful plaintiff's being relieved of a cost does not. There is nothing in either the statute or its legislative history that warrants either absolute rule of prohibition.

Three other decisions illuminate the situation in this case much better than Chesapeake Bay. They are: Fenster v. Brown, 617 F.2d 740 (D.C. Cir. 1979), Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092 (D.C. Cir. 1992), and Peter S. Herrick's Customs & International Trade Newsletter v. U.S. Customs & Border Protection, No. 04CV377(JDB), 2006 U.S. Dist. LEXIS 77935 (D.D.C. Oct. 26, 2006) aff'd without opinion, No. 06-5427, 2007 U.S. App. LEXIS 12470 (D.C. Cir. May 24, 2007).

Fenster involved the long struggle of a law firm to secure certain documents under FOIA. In that case, the court of appeals referred to its earlier decision in the same case, Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977), and its discussion of the legislative history of the FOIA Amendments of 1974, Pub. L. 93-502, 88 Stat. 1561 (1974). That history convinced the court that the existence of a private incentive to use ...


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