United States District Court, District of Columbia
Kessler United States District Judge
Electronic Privacy Information Center ("Plaintiff"
or "EPIC") brings this action against Defendant the
United States Department of Homeland Security ("the
Government" or "DHS") under the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552.
Plaintiff sought records concerning the Defense Industrial
Base Cyber Pilot ("DIB Cyber Pilot"), a
cyber-security pilot program jointly conducted by the United
States Department of Defense ("DoD") and Defendant
DHS. Memorandum in Support of Defendant's Motion for
Summary Judgment ("Def.'s Mot. Summ. J.") at 2
[Dkt. No. 53-1].
program "aim[ed] ... to protect U.S. critical
infrastructure[, ] . . . [and] furnished classified threat
and technical information to voluntarily participating 
companies or their Commercial Service Providers."
Id. EPIC, citing concerns from the Department of
Justice that the, program "[ran] afoul of laws
forbidding government surveillance of private Internet
traffic[, ]"■ filed a FOIA request with DHS
seeking records to determine whether the DIB Cyber Pilot
program complied with federal wiretap laws. Plaintiff's
Memorandum of Points and Authorities in Opposition to
Defendant's Motion for Summary Judgment and in Support of
Plaintiff's Cross-Motion for Summary Judgment
("Pl's Mot. Summ. J.") at 2 [Dkt. No. 57-1].
Dissatisfied with DHS's response, EPIC initiated this
lawsuit challenging the sufficiency of DHS's search and
DHS conducted a search for records responsive to EPIC'S
request, produced documents to EPIC, and provided a
Vaughn Index for all documents that were withheld in
full or in part under one of FOIA's several exemptions. 5
U.S.C. § 552(b); see also Defendant's
Vaughn Index for Challenged Withholdings
("Vaughn Index") [Dkt. No. 53-4].
Court held that DHS's search for records responsive to
EPIC'S FOIA request was sufficient and that the
Government met its burden in justifying withholding documents
under all but one relevant FOIA Exemption. Memorandum Opinion
on Summary Judgment (Aug. 4, 2015) ("2015 Mem.
Op.") at 16 [Dkt. No. 68] . The Court ordered DHS to
submit a revised Vaughn Index to more fully explain
the basis for withholding documents under FOIA Exemption
7(D), id. at 38, which it did on September 30, 2015.
Notice of Filing of Supplemental, Revised Vaughn
Index ("Supplemental Vaughn Index") [Dkt.
No. 73] . EPIC now seeks attorneys' fees under 5 U.S.C.
§ 552(a)(4)(E). Memorandum of Points and Authorities in
Support of Plaintiff's Motion for Attorneys' Fees and
Costs ("Pl's Mot.") [Dkt. No. 81-1].
Freedom of Information Act ("FOIA"), 5 U.S.C §
552, was enacted by Congress "to ensure an informed
citizenry, vital to the functioning of a democratic
society." Critical Mass. Energy Project v. Nuclear
Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir.
1992), cert. denied, 507 U.S. 984 (1993) (citing
Fed. Bureau of Investigations v. Abramson, 456 U.S.
615, 621 (1982)).
agency receives a request for records, the agency must
conduct a sufficient search for records within the scope of
the request. 5 U.S.C. § 552(a)(3)(A). The agency then
must furnish the information in a timely manner, unless the
information is precluded from disclosure by one of FOIA's
nine exemptions. § 552(b). FOIA's goal is
"broad disclosure, " and the exemptions must be
"given a narrow compass." Milner v. Dep't
of Navy, 562 U.S. 562, 571 (2011) (citing U.S.
Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151
agency has the burden of justifying its withholding of a
document under a FOIA exemption. Defenders of Wildlife v.
U.S. Border Patrol, 623 F.Supp.2d 83, 91 (D.D.C. 2009) .
To enable the Court to determine whether the agency has met
its burden, the agency must submit a "Vaughn
Index" consisting of affidavits or declarations that
"identif[y] the reasons why a particular exemption is
relevant and correlate [e] those claims with the particular
part of a withheld document to which they apply."
Id. (citing Judicial Watch, Inc. v. Food &
Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006));
see also Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir.
additionally provides for attorneys' fees in order to
encourage FOIA suits that benefit the public and to
compensate a complainant for enduring an agency's
resistance to complying with FOIA. Barnard v. Dep't
of Homeland Sec, 656 F.Supp.2d 91, 97 (D.D.C. 2009).
FOIA provides that a court may award "reasonable
attorney fees and other litigation costs reasonably
incurred" in FOIA litigation in which the complainant
has "substantially prevailed." 5 U.S.C. §
552(a) (4) (E) (i) .
EPIC'S FOIA Request and Appeal
26, 2011, EPIC submitted a FOIA request for documents to DHS,
as well as requests for news media fee status and a fee
waiver. Pl's Mot. Summ. J. at 2. EPIC requested records
related to the DIB Cyber Pilot program "to monitor
Internet traffic flowing through certain Internet Service
Providers ("ISPs") from Internet users to a select
number of defense contractors." Id.
Specifically, EPIC requested five categories of documents,
with the fifth category described as, "[a]ny privacy
impact assessment performed as part of the development"
of the DIB Cyber Pilot program. Id. at 3.
receiving a FOIA request, an agency must make a
"determination" within 20 working days as to
whether to comply with the request. 5 U.S.C. § 552 (a)
(6) (A) (i) . A "determination" must include the
scope of the documents that the agency will produce and
withhold under FOIA exemptions. Citizens for
Responsibility and Ethics in Washington v. Fed. Election
Comm'n, 711 F.3d 180, 186 (D.C. Cir. 2013).
following week, on August 3, 2011, DHS sent a letter to EPIC
acknowledging receipt of its FOIA request. Def.'s Mot.
Summ. J. at 2. DHS also indicated that it had referred the
request to the DHS National Protection and Programs
Directorate ("NPPD"). DHS Response at 1-2 [Dkt. No.
58-3] . DHS notified EPIC that no responsive documents had
been found for the fifth category and informed EPIC of its
right to appeal that determination.
receiving no further communication regarding its FOIA
request, EPIC faxed an administrative appeal approximately
100 days later on January 5, 2012, to the attention of NPPD
FOIA Officer Lizzy Gary. EPIC Facsimile at 1-2 [Dkt. No.
57-4]. Under DHS's FOIA regulations, an appeal must be
made in writing and received by the Associate General Counsel
of DHS within 60 days of the date of the agency's
"adverse determination." 6 C.F.R. § 5.9(a)(1).
EPIC appealed NPPD's failure to respond to categories 1-4
of EPIC's FOIA request, but did not appeal DHS's
determination that it lacked records for category 5 of the
request. EPIC Facsimile at 2. In its Answer, DHS denied that
the January 5, 2012 facsimile constituted a FOIA appeal,
Answer ¶ 26-28 [Dkt. No. 7], and its timeliness.
Defendant's Statement of Undisputed Material Facts in
Support of its Motion for Summary Judgment ("Def.'s
Statement") ¶ 9-10 [Dkt. No. 62-4].
already noted, the agency must make a determination as to any
appeal within twenty days. 5 U.S.C. § 552(a) (6) (A)
(ii) . An adverse determination by the Associate General
Counsel will be the final action, 6 C.F.R. § 5.9(a)(2),
and the decision "will be made in writing, " 6
C.F.R. § 5.9(b). On January 23, 2012, a FOIA Specialist
from NPPD contacted EPIC by telephone requesting additional
information with respect to category one of EPIC'S FOIA
request. Declaration of Amie Stepanovich ("First
Stepanovich Decl.") ¶ 12 [Dkt. No. 18-1]. EPIC was
unable to provide the agency with further information, and
DHS informed EPIC that "DHS was processing the request,
" Id.; Def.'s Mot. Summ. J. at 3.
FOIA, a person making a request for any records will be
deemed to have exhausted administrative remedies if the
agency fails to comply with the applicable time limit
provisions under FOIA. 5 U.S.C. § 552 (a) (6) (C) (i) .
Arguing that NPPD failed to comply with FOIA by neither
responding to nor producing records for EPIC'S FOIA
request within the statutory timelines, EPIC filed its
Complaint for Injunctive Relief on March 1, 2012. Complaint
for Injunctive Relief ("Compl.") ¶ 4 [Dkt. No.
1]. EPIC sought, inter alia, a court order compelling DHS to
conduct a search for responsive records within five days and
to produce documents within ten days, and attorneys' fees
and other relief as "just and proper." Compl.
¶ A-E. DHS filed its Answer on May 1, 2012.
DHS filed its Answer, the parties submitted a Joint Meet and
Confer Statement, where they agreed that categories 1-4 of
EPIC'S FOIA request served as the basis of the FOIA
litigation, and that EPIC did not appeal DHS's
determination that it lacked records responsive to category
5. Joint Meet and Confer Statement ("Joint
Statement") ¶ 3 [Dkt. No. 11]. The parties also
stated that DHS was conducting a "new search for
records" responsive to categories 1-4 of EPIC'S FOIA
request. Id. ¶ 4. Although the parties agreed
that the post-production issues would likely be the
sufficiency of DHS's search, the appropriateness of the
agency's withholdings, and attorneys' fees, they
disagreed as to the appropriate production schedule.
Id. ¶ 5, 8.
proposed a two-stage search for responsive records, with
stage one focused on gathering responsive records and stage
two focused on reviewing the documents for relevance and
potential FOIA Exemptions. Id. ¶ 6. While DHS
proposed a June 27, 2012 deadline for stage one, the agency
was unable to propose a stage two deadline due to the need
for inter-agency collaboration and the uncertainty as to
timing. Id. Nonetheless, DHS stated it could
complete its "first production" of responsive
records on July 18, 2012. Id. Plaintiff's
proposed schedule consisted of "concrete deadlines,
" with DHS to complete production of documents and the
Vaughn Index by August 24, 2012. Id.
¶7. On May 24, 2012, the Court adopted the
Plaintiff's proposed timeline and issued a scheduling
order for DHS to complete production of documents and the
Vaughn Index by August 24, 2012. Order, May 24, 2012
("Scheduling Order") [Dkt. No. 12].
DHS identified approximately 10, 000 pages of documents
potentially responsive to EPIC'S FOIA request, it moved,
on the last day of the August 24 deadline, to stay
proceedings for ten days to enable the parties to narrow the
scope of EPIC's request. Defendant's Motion for a
10-Day Stay of Proceedings ("Def.'s Mot. Stay")
at 2-3 [Dkt. No. 13]. DHS argued that the large volume of
classified documents potentially responsive to EPIC's
FOIA request would require significant review by DHS and
other agencies. Id. at 2. DHS noted its intention to
move to modify the May 24, 2012 Scheduling Order, but stated
that how much additional time it would need would
"depend on whether the parties are able to reach
agreement on narrowing the scope of the request."
Id. at 2-3.
the Court granted DHS's ten-day stay, DHS moved for a
second ten-day stay. Defendant's Motion to Continue Stay
of Proceedings for 10 Additional Days ("Def.'s
Second Mot. Stay") at 1 [Dkt. No. 14]. Although EPIC had
narrowed its FOIA request on August 31, 2012, by excluding
draft documents and by limiting the scope of request category
three, DHS again sought more time to assess the impact of the
narrowed request on the number of potentially responsive
document pages. Id. at 2-3. In its second motion,
DHS anticipated that it would need to further clarify and
narrow EPIC's FOIA request in light of the remaining
volume of classified document pages. Id.
opposed DHS's second motion on the grounds that DHS
failed to demonstrate "exceptional circumstances."
Plaintiff's Opposition to Defendant's Motion for an
Additional 10-Day Stay of Proceedings ("Pl's
Opp'n Stay") at 3 [Dkt. No. 15]. EPIC noted that DHS
had engaged in significant delays in seeking to narrow the
scope of EPIC's request: first, by waiting until the
deadline for full production had arrived - August 24, 2012,
three months after the May 24 Scheduling Order - before first
contacting EPIC; and then, even after the first 10-day stay
was granted, waiting almost another week to contact EPIC
about further narrowing the FOIA request. Id. EPIC
also argued that DHS "failed to provide a date certain
by which time any documents might actually be produced."
Id. at 5.
the Court granted the second 10-day stay, Order (Sept. 5,
2012) ("Sept. 5, 2012 Order") [Dkt. No. 16], DHS
moved to modify the scheduling order. Defendant's Motion
to Modify the Scheduling Order ("Def.'s Mot. to
Modify") at 1 [Dkt. No. 17]. DHS stated that the new
scope of EPIC'S FOIA request only reduced the number of
potentially responsive document pages from approximately 10,
000 to approximately 9, 200, and that EPIC did not agree to
further narrow the request. Def.'s Mot. to Modify at 1-2.
After estimating that it would take 16 months to review the
documents due to EPIC's broad request, the volume of
documents, and the need for interagency collaboration, DHS
proposed a modified schedule with January 17, 2014 as the
final due date for all responsive documents. Id. at
opposed DHS's motion on the grounds that DHS failed to
show good cause. Plaintiff's Opposition to
Defendant's Motion to Modify the Scheduling Order and
Cross-Motion for Entry of An Order to Show Cause Why
Defendant Should Not Be Held in Contempt at 7 [Dkt. No. 18].
EPIC argued that the delays were due to "preventable
carelessness" on DHS's part, and that the agency had
already been granted multiple stays despite its initial
representation that it could produce documents on July 18,
2012. Id. at 4-5, 7. EPIC alo argued that DHS
demonstrated bad faith in waiting until the day of the
production deadline to ask EPIC to narrow its FOIA request,
and that EPIC had agreed to narrow its request because of
DHS's representation that doing so would "facilitate
production." Id. at 1, 8.
the Court permitted the scheduling order to be modified, it
found DHS's proposed final production deadline of January
17, 2014 as "far too far away." Order, Oct. 16,
2012 ("Modified Scheduling Order") at 2 [Dkt. No.
25] . The Court ordered DHS to fully review at least 2, 000
document pages per month, "producing to Plaintiff all
responsive and unclassified documents, " with complete
production of documents by March 15, 2013, and the
Vaughn Index by May 1, 2013. Id. at 3. The
Order also required DHS to submit a monthly report indicating
how many document pages it produced to EPIC each month.
subsequent order, the Court eliminated the requirement that
DHS produce documents on a rolling basis. Order, Jan. 8, 2013
("Order on Plaintiff's Motion for
Reconsideration") at 2-3 [Dkt. No. 3 9] . Instead, DHS
was ordered to produce all responsive documents by April 15,
2013, with the Vaughn Index due by June 1, 2013.
Id. DHS was still required to provide a monthly
report and to review a minimum number of document pages per
month, but this minimum was reduced to 1, 500. Id.
April 15, 2013, DHS produced 1, 276 pages of responsive
documents to EPIC; 117 pages were released in their entirety
and the remaining 1, 159 pages were partially redacted
pursuant to FOIA Exemptions. Second Declaration of James
Holzer ("Second Holzer Decl.") ¶ 46 [Dkt. No.
53-3]. After receiving several additional extensions from the
Court, DHS provided Plaintiff with its preliminary
Vaughn Index on June 22, 2013, one day after the
June 21, 2013, deadline. Pl's Mot. Summ. J. at 4. In
total, DHS produced 1, 3 86 pages of documents, some released
in full and some redacted, and withheld 362 pages of
documents in full under several of FOIA's exemptions.
Def. ' s Mot. Summ. J. at 1; see also 5 U.S.C.
§ 552(b) .
filed its Motion for Summary Judgment on August 30, 2013,
challenging the adequacy of the search performed by DHS in
response to its FOIA request. Pl's Mot. Summ. J. at 6.
EPIC also alleged that the Government improperly redacted and
withheld documents under FOIA Exemptions 1, 3, 4, 5, and
7(D). Id. at 9, 12, 15, 22, 24. The Court held that
DHS conducted a sufficient search under FOIA and commended
DHS's "meticulous, organized, and thorough"
initial search for responsive records. 2015 Mem. Op. at
15-16. The Court also found that the agency was justified in
its withholding of documents under Exemptions 1, 3, 4, and 5.
Id. at 21, 24, 32, 33.
only claim on which the Court did not find in favor of
Defendant was with regard to documents withheld under
Exemption 7 (D) . The Court held that the Vaughn
Index was not sufficiently detailed to justify the Exemption
7D withholding, but permitted DHS to file a revised
Vaughn Index. Id. at 33-38. Thus, the Court
granted the majority of the Government's Motion for
Summary-Judgment, and denied without prejudice only the
portion relating to Exemption 7D. Id. at 37-38. The
Court denied without prejudice EPIC'S Motion for Summary
Judgment with regard to Exemption 7D and denied the remainder
of EPIC'S Motion for Summary Judgment. Id. In
sum, no portion of EPIC'S Motion for Summary Judgment was
granted. DHS produced a revised Vaughn Index on
September 30, 2015 [Dkt. No. 74], which Plaintiff did not
filing of the revised Vaughn Index thereby resolved
all issues in dispute except costs and attorneys' fees.
Joint Status Report ("Joint Report") at 1 [Dkt. No.
parties now dispute EPIC'S Motion for Attorneys' Fees
and Costs, filed on February 5, 2016. Pl's Mot. [Dkt. No.
81-1]. On March 9, 2016, DHS filed its Opposition.
Defendant's Opposition to EPIC'S Motion for Attorney
Fees and Costs ("Def.'s Opp'n") [Dkt. No.
86]. On March 22, 2016, EPIC filed its Reply. Reply in
Support of Plaintiff's Motion for Attorneys' Fees and
Costs ("Reply") [Dkt. No. 87].
STANDARD OF REVIEW
may award "reasonable attorney fees and other litigation
costs reasonably incurred" in the course of FOIA
litigation in which the complainant has "substantially
prevailed." 5 U.S.C. § 552(a)(4)(E). Even though
the award of attorneys' fees and costs is within the
Court's discretion, a complainant must be both
"eligible" for and "entitled" to
attorneys' fees. See Brayton v. Office of the U.S.
Trade Representative, 641 F.3d 521, 524 (D.C. Cir.
2011). In order to be "eligible" for attorneys'
fees, a complainant must "substantially prevail "
in the litigation. Id. A complainant may
"substantially prevail" by obtaining relief through
a "judicial order, or an enforceable written agreement
or consent decree" or by obtaining a "voluntary or
unilateral change in position" by the
agency. 5 U.S.C. § 552 (a) (4) (E) (ii)-(I) -
determine whether a complainant is "entitled" to
attorneys' fees, the Court considers factors, including,
but not limited to: "(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) the reasonableness of the agency's withholding of
the requested documents." McKinley v. Fed. Hous.
Fin. Agency, 739 F.3d 707, 711 (D.C. Cir. 2014)
party seeking fees has the additional burden of establishing
the reasonableness of the fees requested. Barnard,
656 F.Supp.2d at 97. The complainant must provide supporting
documentation that is sufficiently detailed "to enable
the court to determine with a high degree of certainty that
such hours were actually and reasonably expended."
Id., (quoting Role Models America, Inc. v.
Brownlee, 353 F.3d 962, 975 (D.C. Cir. 2004)).
Analysis A. Plaintiff's Eligibility for
argues that it is "eligible" under both the
"judicial order" and the "catalyst"
theories. Pl's Mot. at 6-8; Reply at 3-11.
Plaintiff's Eligibility under the "Judicial
argues that the following Orders issued by the Court support
its eligibility for attorneys' fees under the
"judicial order" theory: (1) the May 24, 2012,
Scheduling Order, the Oct. 16, 2012, Modified Scheduling
Order, and the Jan. 8, 2013, Order on Plaintiff's Motion
for Reconsideration; and (2) the Court's Order on the
parties' cross motions for summary judgment
("Summary Judgment Order") [Dkt. No. 67] . Pl's
Mot. at 6-7. DHS argues that none of the Orders issued in
this litigation establish that EPIC is eligible for
attorneys' fees. Def.'s Opp'n at 5-9.
Orders Requiring Production
Court begins with Plaintiff's argument that it
substantially prevailed in this litigation as a result of the
issuance of the Court's Scheduling Order, the Modified
Scheduling Order, or the Order on Plaintiff's Motion for
plaintiff substantially prevails when "awarded some
relief on the merits of [its] claim" in the form of a
judicial order that "change[s] the legal relationship
between the plaintiff and defendant." Judicial
Watch, Inc. v. FBI, 522 F.3d 364, 367-68 (D.C. Cir.
2008) (citing Davy v. Central Intelligence Agency,
456 F.3d 162, 165-66 (D.C. Cir. 2006) ("Davy
I") (internal quotation marks omitted)) . An order
that requires an agency to produce documents by a date
certain changes the legal relationship between the parties,
because prior to the order, the agency "[is] not under
any judicial direction to produce documents by specific
dates, " whereas after the order, the agency must do so
or be subject to the sanction of contempt. Id. at
368 (citing Davy I, 456 F.3d at 166) .
example, in Judicial Watch an agency refused to
release documents responsive to a FOIA request, withholding
them pursuant to one of the FOIA Exemptions. 522 F.3d at 366.
After the FOIA requestor filed suit, the agency and the
requestor entered into a stipulation, whereby the agency
would release the responsive documents by a date certain, and
the district court approved the stipulation in a court order.
Id. The Court of Appeals held that the plaintiff
substantially prevailed as a result of the orders because the