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Electronic Privacy Information Center v. Federal Bureau of Investigation

United States District Court, D. Columbia.

November 5, 2014

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant

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[Copyrighted Material Omitted]

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For ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff: Marc Rotenberg, LEAD ATTORNEY, Ginger P. McCall, ELECTRONIC PRIVACY INFORMATION CENTER, Washington, DC.

For FEDERAL BUREAU OF INVESTIGATION, Defendant: Marcia Kay Sowles, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

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MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge.

Plaintiff Electronic Privacy Information Center (" EPIC" ) moves this Court for an award of fees and costs arising out of the instant Freedom of Information Act Complaint. For the reasons that follow, the Court grants in part and denies in part EPIC's Motion (ECF No. 15).

I. BACKGROUND

EPIC filed its Complaint for Injunctive Relief (ECF No. 1) on April 8, 2013, seeking to compel the FBI's compliance with two Freedom of Information Act (" FOIA" ) requests for the release of certain records related to the FBI's Next Generation Identification (" NGI" ) program.

On September 20, 2012, more than six months prior to filing this suit, EPIC transmitted its first FOIA request (" First Request" ) to the FBI. (Ex. A (ECF No. 16-2)

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to Hardy Decl., itself Ex. 1 to Def.'s Mot.). On September 21, 2012, one day after it submitted its First Request, EPIC submitted another FOIA request (" Second Request" ) to the FBI regarding the NGI system. (Hardy Decl. Ex. G).

The FBI acknowledged receipt of EPIC's First and Second Requests by separate letters dated September 26, 2012 (Hardy Decl. ¶ ¶ 8, 17; Id. Exs. B, H).

Two days later, the FBI informed EPIC that it had " located approximately 7,380 pages which are potentially responsive to the FOIA [request]" and invited EPIC to narrow the scope of the Second Request. ( Id. ¶ 19). Following a discussion with the FBI's Records/Information Dissemination Section, on October 19, EPIC provided the FBI with a narrowed Revised Second Request. ( Id. ¶ 21; Id. Ex K).

After receiving no substantive response from the FBI regarding its FOIA requests, EPIC then filed this suit. EPIC asserts that following the submission of its Revised Second Request in October 2012 through the date on which it filed its Complaint almost 6 months later, " FBI had not contacted EPIC again regarding the status of any of the requests, nor had the FBI disclosed a single agency record in response to any of its requests." (Mot. 5). The FBI represents that during that time, it conducted initial searches and gathered potentially responsive records but was unable to complete its processing " due to its backlog of prior pending requests and limited resources." (Hardy Decl. ¶ ¶ 9, 13, 23, 34-37).

On May 30, 2013, the Court issued an Order (ECF No. 8) requiring the parties to file, on or before June 26, 2013, a joint proposed briefing schedule for the filing of dispositive motions.

By letter dated June 6, 2013, the FBI released 592 pages of material to EPIC in response to its First Request. (Hardy Decl. ¶ 15). Because the FBI determined that " the contract had been public at one point, no redactions were necessary." ( Id.).

In response to the Court's May 30, 2013 Order, on June 26, 2013 the parties filed a Joint Proposed Briefing Schedule. (ECF No. 9). In addition to proposing a dispositive motion briefing schedule, the parties also stipulated that " Defendant will produce to Plaintiff all non-exempt responsive materials on or before August 30, 2013, with an interim production on or before July 31, 2013." ( Id.). The Court then issued an Order on June 28, 2013 implementing the parties' proposed dispositive motion briefing schedule and the parties' proposal regarding production, ordering " that the defendant shall produce to the plaintiff all non-exempt responsive materials on or before August 30, 2013, with an interim production on or before July 31, 2013." (ECF No. 10 (emphasis added)).

By letter dated July 31, 2013, the FBI made its first interim release to EPIC in response to the Second Request. (Hardy Decl. ¶ 27; Id. Ex. N). By letter dated August 30, 2013, the FBI made its second release. ( Id. ¶ 28; Id. Ex. O).

The parties filed a Joint Status Report on December 4, 2013 (ECF No. 14), in which they informed the Court that no underlying legal issues remained and requested a briefing schedule to resolve the issue of attorneys' fees.

EPIC requests an award of $15,851.50, representing attorney fees of $15,501.50 and costs of $350, for its prosecution of the instant civil suit and an additional $6,272.50 in fees for preparation of its Reply, for a total award of $22,124.00. The FBI responds that EPIC's request for fees should be denied entirely or substantially reduced. The FBI concedes that

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EPIC is entitled to costs of $350.00 for filing the Complaint.

II. ANALYSIS

a. Eligibility for Attorneys' Fees and Costs Under FOIA

The Freedom of Information Act provides that courts " 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)(i). This language divides the attorneys' fee inquiry into two prongs, which this Circuit has long described as fee " eligibility" and fee " entitlement." Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524, 395 U.S.App.D.C. 155 (D.C. Cir. 2011) (citing Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363, 368-69, 373 U.S.App.D.C. 424 (D.C. Cir. 2006)). The eligibility prong asks whether a plaintiff has " substantially prevailed" and thus " may" receive fees. Id. (citing Judicial Watch v. Dep't of Commerce, 470 F.3d at 368). " If so, the court proceeds to the entitlement prong and considers a variety of factors to determine whether the plaintiff should receive fees." Id. (emphasis added) (citing Judicial Watch v. Dept' of Commerce, 470 F.3d at 369).

A party has " substantially prevailed" by obtaining relief through either " a judicial order, or an enforceable written agreement or consent decree" or " a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial." 5 U.S.C. § 552(a)(4)(E)(ii)(I) and (II). EPIC argues that it substantially prevailed under the former provision by obtaining the FBI's production of 2,462 pages[1] of responsive documents pursuant to the Court's June 28, 2013 Order.

This Circuit offers ample relevant authority. In Judicial Watch, Inc. v. FBI, 522 F.3d 364, 380 U.S.App.D.C. 339 (D.C. Cir. 2008), the Court held that the plaintiff prevailed because " the parties had stipulated that the defendant agency would produce the requested records by a date certain and the trial court approved the parties' joint stipulation." Id. at 368 (quotation omitted). The D.C. Circuit found Judicial Watch v. FBI factually indistinguishable from Davy v. CIA, 456 F.3d 162, 373 U.S.App.D.C. 12 (D.C. Cir. 2006) (" Davy I " ), which similarly held that the plaintiff prevailed on the basis of a joint stipulation, approved by the district court, that the defendant would provide " all responsive documents, if any" by dates certain. Davy I, 456 F.3d at 164. In Judicial Watch v. FBI, as in Davy I, the Court emphasized that " [p]rior to the parties' joint stipulation and order, . . . '[the defendant] was not under any judicial direction to produce documents by specific dates; the . . . order changed that by requiring the [defendant] to produce all responsive documents by the specified dates.'" Judicial Watch v. FBI, 522 F.3d at 367-68 (quoting Davy I, 456 F.3d at 166); Id. at 370 (" As we have held time and again, orders like these [directing the government to release information sought pursuant to FOIA], even when voluntarily agreed to by the government, are sufficient to make plaintiffs eligible for attorneys' fees under FOIA." ); see also Campaign for Responsible Transportation v. FDA, 511 F.3d 187, 197, 379 U.S.App.D.C. 158 (D.C. Cir. 2007) (court order requiring recalcitrant agency to release documents pursuant to FOIA sufficient to render plaintiff a prevailing party; agreement of defendant to terms mandated by court order is irrelevant); Edmonds v. FBI, 417 F.3d 1319, 1324, 1326-27, 368 U.S.App.D.C. 70 (D.C. Cir. 2005) (plaintiff prevails

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by obtaining an order providing judicial direction to produce all nonexempt documents by a date certain; plaintiff may be considered prevailing party by succeeding on any significant issue in litigation which achieves some of the benefit the plaintiff sought in bringing suit).

In determining fee eligibility, one particularly relevant factor is whether there has been an award of some relief on the merits of a claim and a " judicially sanctioned change in the legal relationship of the parties." Davy I, 456 F.3d at 165-66; see also Judicial Watch v. FBI, 522 F.3d at 370 (holding Judicial Watch was awarded some relief by a court when it obtained, pursuant to court orders, the two videotapes it sought).

This principle was recently applied in Judicial Watch, Inc. v. U.S. Dep't of Justice, 774 F.Supp.2d 225 (D.D.C. 2011). There, the parties filed a joint stipulation, approved by the court, declaring that the DOJ would complete production of all responsive documents by a date certain. Judicial Watch asserted that the Court's adoption of the stipulation constituted a judicial award of relief on the merits; the DOJ countered that the minute order was merely procedural. The Court found the DOJ's argument unavailing under Judicial Watch v. FBI, Davy I, Campaign for Responsible Transportation, and Edmonds and held that the minute order " fits squarely within the holdings of these cases." Id. at 229. The Court found the minute order " functionally indistinguishable from that in Davy[ I], where the stipulation, approved by the district court, stated that the defendant would provide 'all responsive documents, if any,' by certain dates." Id. (quoting Davy I, 456 F.3d at 164).

In light of the well-established precedent in this Circuit, the Court finds that EPIC is eligible for attorneys' fees and costs because it substantially prevailed by obtaining production of responsive documents pursuant to the Court's June 28, 2013 Order, which approved the parties' stipulated production date. Compliance with this Order constituted both some relief on the merits of EPIC's claim and a judicially sanctioned change in ...


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