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Electronic Privacy Information Center v. United States Drug Enforcement Administration

United States District Court, District of Columbia

July 18, 2017



          CHRISTOPHER R. COOPER United States District Judge

         Plaintiff Electronic Privacy Information Center (“EPIC”) submitted a FOIA request to the Drug Enforcement Administration seeking internal assessments of how the agency's information collection systems affect citizens' privacy. When the DEA failed to produce responsive records by the statutory deadline, EPIC filed suit. The DEA subsequently released a single privacy assessment concerning a technology system that it no longer used, along with written guidance from the Department of Justice on whether specific DEA systems would require further privacy analysis. Both sides then moved for summary judgment, with EPIC objecting to the adequacy of both the DEA's original and supplemental search for responsive records. After ordering the DEA to submit a supplemental declaration justifying its later searches, the Court found in its favor on all issues. EPIC now moves for attorneys' fees and costs in the amount of $33, 468.08. Finding that EPIC is entitled to compensation for some, but not all, of its fees, the Court will grant in part and deny in part EPIC's motion and award it a portion of its requested amount.

         I. Background[1]

         The E-Government Act of 2002 requires federal agencies to perform a Privacy Impact Assessment (“PIA”) when “initiating a new collection of information” or “developing or procuring information technology that collects, maintains, or disseminates information that is an identifiable form.” Pub. L. 107-347, § 208, 116 Stat. 2899, 2921 (2002). The Department of Justice's Office of Privacy and Civil Liberties (“OPCL”) assists agencies in determining when a PIA is necessary by examining Initial Privacy Assessments (“IPAs”) for particular information systems under consideration by the agency.

         In February 2015, EPIC submitted a two-part FOIA request to the DEA seeking IPAs and non-public PIAs for information technology systems used by the DEA that involve the collection of identifiable personal information. Pl.'s Compl. ¶ 39. The DEA promptly confirmed that it had received EPIC's request and would process it in the order it was acknowledged. Id. at ¶ 42. Three months having passed with no additional response, EPIC filed suit in early May 2015 requesting that the Court order the DEA to search for and produce all responsive, non-exempt records. The DEA filed an answer, and the Court ordered the parties to “file a joint proposed schedule for briefing or disclosure[.]” June 29, 2015 Minute Order. After the parties negotiated the scope of the request and submitted a joint status report, the Court ordered the DEA to “produce to Plaintiff any non-exempt records responsive to Plaintiff's FOIA request, by U.S. mail, on or before August 27, 2015.” July 20, 2015 Minute Order. Within a week, the DEA released a PIA for an information technology system that the DEA indicated was not publicly posted because it was no longer used. See Def.'s Opp'n Pl.'s Mot. for Attorneys' Fees and Costs (“Def.'s Opp'n”), Fourth Decl. of Katherine L. Myrick (“Fourth Myrick Decl.”) ¶ 15. The DEA also released 13 determination letters from the OPCL, which EPIC had agreed to accept in lieu of Initial Privacy Assessments. See Fourth Myrick Decl. ¶¶ 12-14. DOJ used these determination letters to advise the DEA whether more comprehensive privacy assessments were necessary for a particular technology system. After reviewing these letters, EPIC found that four of them recommended PIAs, which were neither publicly available nor disclosed by the DEA after its initial search, so EPIC requested that the DEA search again for them. See First Myrick Decl. ¶ 32. The DEA re-ran its original search-using the same search terms and searching the same databases as before-with no new results. Id. at ¶ 33.

         The parties then cross-moved for summary judgment, the DEA arguing that it had conducted a reasonable search and EPIC challenging the adequacy of the agency's search by offering evidence of the purportedly missing PIAs. After reviewing the parties' briefing and assessing the DEA's search methodologies, the Court granted and denied in part the DEA's motion for summary judgment and denied and reserved judgment in part on EPIC's cross-motion. See Mem. Op. 11, ECF No. 24. The Court held that the scope and methodology of the DEA's initial search was adequate, but, on the record before it, was unable to determine if the DEA had performed a reasonable, supplemental search for the four PIAs referenced in the OPCL determination letters. Id. at 9-10. Accordingly, the Court ordered the DEA “either to conduct a supplemental search consistent with this opinion or explain in a supplemental declaration why such a search would not be likely to uncover the remaining records in question.” Id. at 10. The DEA offered a supplemental declaration explaining why an additional search would not uncover different results, and simultaneously conducted a supplemental search-using additional search terms and locations-with no new results. See Def.'s Mem. Supp. Renewed Mot. Summ. J. 6-7. The DEA renewed its motion for summary judgment, to which EPIC raised no objections. See id.; Pl.'s Mot. Vacate Briefing Schedule 1. The Court granted the DEA's motion. See Nov. 10, 2016 Order, ECF No. 29. The parties also attempted to negotiate attorneys' fees and costs, but having failed to reach an agreement, EPIC moves to recover fees and costs in the amount of $33, 468.08, which includes time spent preparing the present motion. Pl.'s Mem. Supp. Mot. for Attorneys' Fees and Costs (“Pl.'s Mot. Attorneys' Fees”) 2.

         II. Legal Standard

         Courts “may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred” in any FOIA case where “the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i) (emphasis added). A FOIA plaintiff must clear two hurdles in order to recover its fees and costs: it must show it is (1) eligible and (2) entitled to such an award. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011). Under the eligibility prong, a court “asks whether a plaintiff has substantially prevailed and thus may receive fees.” Id. To substantially prevail, the complainant must show it has obtained relief through either a judicial order 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); see also Brayton, 641 F.3d at 525 (“[T]he OPEN Government Act of 2007 . . . revived the possibility of FOIA fee awards in the absence of a court decree.”).

         “If the requester is eligible for a fee award, a court ‘proceeds to the entitlement prong and considers a variety of factors to determine whether the plaintiff should receive fees.'” Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 999 F.Supp.2d 61, 66-67 (D.D.C. 2013) (quoting Brayton, 641 F.3d at 524). A court must consider the following factors when determining entitlement: “(1) the public benefit derived from the case, (2) the commercial benefit to the requester, (3) the nature of the requester's interest in the information, and (4) the reasonableness of the agency's conduct.” Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013). “In applying this test, ‘[n]o one factor is dispositive.'” EPIC, 999 F.Supp.2d at 67 (quoting Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008)). “The sifting of those criteria over the facts of a case is a matter of district court discretion.” Tax Analysts v. DOJ, 965 F.2d 1092, 1094 (D.C. Cir. 1992).

         Finally, if a FOIA plaintiff is both eligible and entitled to a fees award, a court should assess the reasonability of the requested award. While precedent can be a helpful guide to a court in conducting its assessment, the D.C. Circuit has recognized that this analysis is “necessarily somewhat imprecise, ” Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1323 (D.C. Cir. 1982), and asks that judges simply “exercise their discretion as conscientiously as possible, and state their reasons as clearly as possible, ” Copeland v. Marshall, 641 F.2d 880, 893 (D.C. Cir. 1980) (en banc).

         III. Analysis

         The Court's application of these standards will proceed in three parts: (1) EPIC's eligibility for a fee award, (2) EPIC's entitlement to a fee award, and (3) the reasonableness of its award estimate.

         A. EPIC's Eligibility

         This Court's June 20, 2015 Order and the DEA's subsequent release of records establishes EPIC as a prevailing party by granting the organization's requested relief. The D.C. Circuit has at least thrice held that a judicial order requiring disclosure renders a plaintiff eligible for a fee award. See Judicial Watch, Inc. v. F.B.I., 522 F.3d 364, 368 (D.C. Cir. 2008) (district court order adopting a jointly proposed disclosure deadline rendered the plaintiff eligible for a fee award); Davy v. C.I.A., 456 F.3d 162, 166 (D.C. Cir. 2006) (same); Edmonds v. F.B.I., 417 F.3d 1319, 1322-23 (D.C. Cir. 2005) (same). In Davy, the parties proposed a production schedule, which the Court memorialized in an order requiring the agency to “provide Plaintiff all responsive documents, if any” by specific, agreed-upon dates. Id. at 164. Even though the order adopted a jointly proposed schedule, it still created a “‘judicially sanctioned change in the legal relationship of the parties' because ‘timely production of nonexempt documents by the [agency] could no longer be described as a voluntary change in the defendant's conduct.'” Id. at 166 (quoting Edmonds, 417 F.3d at 1322-23). Likewise, upon receiving the parties' joint status report, this Court ordered the DEA to “produce to [EPIC] any non-exempt records . . . on or before August 27, 2015.” June 20, 2015 Minute Order. This Court's order is virtually indistinguishable from those upheld by the Circuit and thus satisfies the eligibility prong. Despite this clear precedent, the DEA argues that EPIC did not substantially prevail because the agency was already reviewing its records and would have released them regardless of the court order. Def.'s Opp'n 12-13. It relies on Hall & Assocs. v. U.S. Envtl. Prot. Agency, 210 F.Supp.3d 13 (D.D.C. 2016), to support its position. But unlike in Hall, where the FOIA requester refused to clarify his request when asked, ...

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