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Electronic Privacy Information Center v. Federal Bureau of Investigation

United States District Court, District of Columbia

February 20, 2015

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

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Plaintiff, Electronic Privacy Information Center ("EPIC"), filed a Motion for Attorney's Fees which the Court referred to Magistrate Judge Alan Kay. See Order (Feb. 4, 2014), ECF No. [34]. Magistrate Judge Kay submitted a Report and Recommendation to the Court, recommending that Defendant, the Federal Bureau of Investigation ("FBI"), pay $20, 799 in attorney's fees and $350 in costs to EPIC.[1] Report & Recomm. ("R&R"), ECF No. [38]. Presently before the Court are the parties' Objections to the Report and Recommendation. Upon consideration of the pleadings, [2] the relevant legal authorities, and the record as a whole, the Court finds that, although the majority of Magistrate Judge Kay's recommendations are based on sound reasoning and shall be adopted, EPIC's objections to certain of Magistrate Judge Kay's reductions in the attorney's fees award have merit. Accordingly, Magistrate Judge Kay's Report and Recommendation is ADOPTED as modified in this Memorandum Opinion. Additionally, the Court has determined that the FBI shall pay EPIC $9, 175.50 for attorney's fees expended by EPIC in preparing its initial motion for attorney's fees and its Objections to the Report and Recommendation. In total, the Court shall award EPIC $29, 635 in attorney's fees and costs.

I. BACKGROUND

According to its Complaint, EPIC is a "public interest research organization incorporated as a not-for profit corporation in Washington, D.C. EPIC[] conducts oversight of Government activities and policies and analyzes their impact on civil liberties and privacy interests." Compl., ¶ 4. On February 10, 2012, EPIC submitted a FOIA request to the FBI requesting agency records regarding cell-site simulator or "StingRay" technology, which EPIC asserts is used by the FBI and other federal agencies to track and locate cellular telephones and other wireless devices. See id. ¶¶ 6, 19. The request specifically sought:

i. "All documents concerning technical specifications of the StingRay device or other cell-site simulator technologies";
ii. "All documents concerning procedural requirements or guidelines for the use of Sting Ray device or other cell-site simulator technologies (e.g. configuration, data retention, data deletion)";
iii. "All contracts and statements of work that relate to StingRay device or other cellsite simulator technologies";
iv. "All memoranda regarding the legal basis for the use of StingRay device or other cell-site simulator technologies"; and
v. "All Privacy Impact Assessments or Reports concerning the use or capabilities of StingRay device or other cell-site simulator technologies."

Id. ¶ 20. EPIC asked the FBI to expedite its response to the request, grant EPIC "News Media" fee status, and waive all duplication fees. Id. ¶¶ 21-23.

The FBI acknowledged receipt of EPIC's request on February 16, 2012. Id. ¶ 25. On March 20, 2012, having received no further correspondence from the FBI regarding its request, EPIC filed an administrative appeal with the Office of Information Policy, part of the Department of Justice. Id . ¶¶ 30-31. According to EPIC, the Department of Justice failed to respond to EPIC's appeal within the twenty-day deadline set by the FOIA. Id. ¶ 35. EPIC filed suit in this Court on April 26, 2012, alleging that the FBI failed to comply with statutory deadlines, failed to make reasonable efforts to search for responsive records, unlawfully withheld agency records, and failed to designate EPIC as a representative of the news media for fee purposes. Id . ¶¶ 37-54.

On June 4, 2012, the FBI granted EPIC a fee waiver, but denied expedited processing of EPIC's request for agency records. Def.'s Opp'n at 2. The parties disagreed on a production schedule. In a July 1, 2012, Scheduling Order, the Court found that "[t]he FBI exceeded the statutorily prescribed time frames for responding to EPIC's request over three months ago, and now requests an additional two years and five months to complete its production of responsive documents." Order (July 1, 2012), ECF No. [13], at 2. Accordingly, the Court ordered the FBI to file an Open America stay by July 30, 2012, or else the Court would adopt Plaintiff's proposed schedule. Id. The FBI filed a Motion for an Open America Stay and, during the pendency of that Motion, began making rolling productions. Def.'s Opp'n at 4. On March 28, 2013, the Court denied the FBI's Motion for an Open America Stay finding that the FBI had "not demonstrated exceptional circumstances exist so as to warrant the fourteen-month stay of proceedings requested by the FBI." Mem. Op. (Mar. 28, 2013), ECF No. [19], at 1. The Court ordered the FBI to produce all responsive, non-exempt documents by no later than August 1, 2013. Id. at 12.

The parties filed a Joint Status Report on August 29, 2013, and proposed a schedule for the production of a Vaughn index by the FBI to accompany a 500-page sample of released documents selected by EPIC. See Joint Status Report (Aug. 29, 2013), ECF No. [23], ¶ 10. EPIC requested the Vaughn index to assist it in evaluating the FBI's withholdings under Exemption 3 and Exemption 7(E) and in determining how to proceed in this matter. Id. Pursuant to its preparation of the Vaughn index, the FBI "voluntarily agreed to review the 500 pages to determine if there were additional terms that could be released." Joint Status Report (Nov. 1, 2013), ECF No. [25], ¶ 6. On October 1, 2013, the FBI produced the sample Vaughn index as well as the reprocessed sample pages which included terms that had originally been redacted. Id. ¶ 7.

On November 1, 2013, the parties filed a Joint Status Report indicating that the FBI had produced documents on a rolling basis through July 30, 2013, and had completed its production and that EPIC was willing to resolve the remaining legal issues in this case-attorney's fees and costs-through settlement. Id. ¶¶ 5, 8. The parties, however, were unable to come to an agreement about attorney's fees and costs. See Joint Status Report (Nov. 12, 2013), ECF No. [27], ¶¶ 2-3. Accordingly, EPIC filed a Motion for Attorney's Fees on December 19, 2013, requesting a total of $33, 802.00 in attorney's fees and $350 in costs. Pl.'s Mot. at 12. The FBI subsequently filed an Opposition and EPIC filed a Reply.

The Court referred EPIC's Motion to Magistrate Judge Kay for a Report and Recommendation. Magistrate Judge Kay issued his Report and Recommendation on September 19, 2014, recommending that the Court award EPIC $20, 799 in attorney's fees and $350 in costs. R&R at 14. Magistrate Judge Kay awarded attorney's fees and costs in an amount lower than that requested by EPIC on the basis that EPIC billed an excessive amount of time for drafting the Complaint and preparing the Joint Proposed Schedule. Id. at 9-10. Magistrate Judge Kay also reduced the amount of attorney's fees after finding that EPIC should not recover for time spent reviewing documents received following the Court's Open America Order. Id. at 10-12. Magistrate Judge Kay abstained from evaluating EPIC's request for fees-on-fees until the issue of attorney's fees for litigating the merits was decided by the Court. Id. at 13-14. Accordingly, Magistrate Judge Kay further reduced the requested amount of attorney's fees by the amount that he determined was associated with the fees-on-fees request. Id. Magistrate Judge Kay rejected all other bases on which the FBI argued that the requested amount of attorney's fees and costs was unreasonable. Id. at 14.

Both parties filed objections to Magistrate Judge Kay's Report and Recommendation. The FBI claims that EPIC is not entitled to attorney's fees for the reasons previously argued in the FBI's opposition to EPIC's Motion for Attorney's Fees. The FBI also claims that Magistrate Judge Kay misattributed the amount of attorney's fees associated with EPIC's fees-on-fees request as opposed to EPIC's fees request for litigating the ...


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