MEMORANDUM OPINION
BERYL
A. HOWELL CHIEF JUDGE
The
plaintiff, Grand Canyon Trust, seeks attorney's fees and
costs, pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552(a)(4)(E), arising
from the plaintiff's underlying FOIA requests to
defendants, the Department of the Interior's Office of
the Secretary (“DOI-OS”) and Bureau of Land
Management (“BLM”), for documents regarding an
order issued by the Secretary of the Interior concerning the
Federal Coal Program, see Compl. ¶ 2, ECF No.
1. Within thirteen months of submitting the FOIA requests and
four months of the filing of the complaint, the defendants
disclosed, in whole or in part, 65, 353 pages of records,
which disclosures fully discharged the defendants'
obligations under the FOIA. The parties reached a settlement
regarding document production issues but contested the issue
of attorney's fees. For the reasons set forth below, the
plaintiff's Motion for Attorney Fees and Costs, Pl.'s
Mot. Att'y's Fees (“Pl.'s Mot.”), ECF
No. 17, is denied because the plaintiff is ineligible for a
fee award.
I.
BACKGROUND
The
plaintiff Grand Canyon Trust is “a non-profit
corporation with over 3, 500 members” and the mission
“to protect and restore the lands, ecosystems, and
environment of the Colorado Plateau, including those federal
lands for which the mineral estate is owned or managed by the
federal government by and through the U.S. Department of the
Interior and the Bureau of Land Management pursuant to the
Federal Coal Program.” Compl. ¶ 11. In August
2016, the plaintiff submitted FOIA requests to the DOI-OS and
BLM requesting “[a]ll documents and records concerning
and supporting the development of the January 15, 2016
Secretarial Order 3338” and “[a]ll documents and
records concerning the implementation of the January 15, 2016
Secretarial Order 3338, specific to Section 5, Pause of the
Issuance of New Federal Coal Leases for Thermal Coal, and
Section 6, Exclusions.” Pl.'s Mot., Ex. 1, Decl. of
Eric Ames (“Ames Decl.”), Ex. C, Correspondence
between Grand Canyon Trust and DOI-OS (“DOI-OS
Correspondence”) at 12, ECF No. 17-1; see also
Ames Decl., Ex. D, Correspondence between Grand Canyon Trust
and BLM (“BLM Correspondence”) at 46, ECF No.
17-1.[1] The two defendants' responses are
detailed below, followed by a summary of the ensuing
litigation.
A.
The Plaintiff's FOIA Request to the Office of the
Secretary
The
DOI-OS acknowledged receipt of the plaintiff's August 2,
2016, request on August 16, 2016, and advised that the DOI-OS
FOIA Office was “taking a 10-workday extension under 43
C.F.R. § 2.19” and would be “placing your
request under the ‘Complex' processing
track.” DOI-OS Correspondence at 17. Two months later,
on October 18, 2016, the plaintiff sent a letter to the
DOI-OS “objecting to the Office of the Secretary's
failure to issue a determination within the statutory
deadlines in the FOIA” and requesting “an
estimated completion date.” Compl. ¶ 33; see
also DOI-OS Correspondence at 18-19. The DOI-OS
responded on October 20, 2016, explaining that the FOIA
office was “continuing to search for records” and
would “provide records to you on a rolling basis as
they become available.” DOI-OS Correspondence at 21.
The DOI- OS estimated that the agency's first response
would be sent “on or about November 17, 2016.”
Id. Five days later, the DOI-OS again notified the
plaintiff that the request was being processed. Id.
at 22. Although the DOI-OS did not provide any files by
November 16, 2016, the agency provided a “partial
response” of 222 pages on December 2, 2016.
Id. at 24; see also Compl. ¶ 36.
On
January 17, 2017, the DOI-OS informed the plaintiff that its
search had been completed and all responsive records located,
noting that “the records are exceptionally
voluminous-about 8, 000 additional pages.” DOI-OS
Correspondence at 29. The DOI-OS further stated that although
the office had “many requests that require our work and
attention, we continue to work diligently on yours, ”
with a final response expected “in early
February.” Id. On March 17, 2017, after not
hearing from the DOI-OS in February, the plaintiff inquired
about the timing of “a final response so that we can
avoid taking additional steps to secure the public
documents.” Id. The DOI-OS promptly responded
that the records were “currently with the Office of the
Solicitor for comment, ” which is “the final,
routine stage of review, ” and that the Office of the
Solicitor “has a multitude of requests that require its
attention” but was “working diligently to review
the voluminous records that are responsive to your
request.” Id. In addition, the DOI-OS had
located “several thousand additional pages of
information” that were still being evaluated.
Id. In April 2017, the DOI-OS informed the plaintiff
that letters had been sent to several coal companies,
notifying the companies that certain information submitted by
the companies to the DOI-OS was responsive to the
plaintiff's FOIA request and inviting the companies to
submit any objections to the release of such information.
Id. at 30-42.
Finally,
on May 1, 2017, the plaintiff requested that the DOI-OS
“identify the estimated completion date and provide a
disclosure plan for the release of documents and records no
later than the close of business on May 3, 2017.”
Id. at 45. On May 3, 2017, a FOIA Officer from the
DOI-OS spoke with the plaintiff and stated that “a
large portion of the documents were being reviewed by the
Office of the Solicitor” and that “the request
would take at least another two months to finalize.”
Defs.' Answer ¶ 43, ECF No. 18. The plaintiff then
filed this lawsuit on May 9, 2017.
According
to the defendants, “as of the date of Plaintiff's
Complaint, the Office of the Secretary had completed its
search for all responsive documents [and] had produced the
first partial response of 222 pages of records to
Plaintiff.” Id. ¶ 3. A second partial
release of 5, 830 pages of records was transmitted to the
plaintiff on May 25, 2017, two weeks after the complaint was
filed but without any action by the Court. Id.
¶ 38. On June 13, 2017, approximately one month after
the complaint was filed, the DOI-OS transmitted a final
release of 314 pages, resulting in a total 6, 366 pages
released to the plaintiff, still without any deadlines
imposed by the Court. See Joint Status Report dated
June 28, 2017 (“First JSR”) at 1, ECF No. 12.
B.
The Plaintiff's FOIA Request to BLM
BLM
responded to the plaintiff's August 2, 2016, request two
days later and informed the plaintiff that the request
“falls into the complex track, ” which “is
for requests that can be processed in twenty-one to sixty
workdays.” BLM Correspondence at 49. On October 10,
2016, however, BLM allegedly informed the plaintiff
“that it would require ‘at least a year to
compile and produce the responsive documents.'”
Compl. ¶ 54. The plaintiff responded on October 17,
2016, requesting “an explanation for the estimated
completion date.” Id. ¶ 55; see
also BLM Correspondence at 50-52. Ten days later, BLM
responded that work was underway to “get[ ] you the
responsive records as expeditiously as we can, ” with
“rolling releases” shortly, and that the
plaintiff would be contacted “no later than Tuesday,
November 1 to provide you with either a timeline or records
release schedule.” BLM Correspondence at 53. On
November 2, 2016, BLM informed the plaintiff that “the
easiest way to provide you the records would be on a monthly
basis, ” id. at 54, but no records were
produced in November 2016, Compl. ¶ 58. The plaintiff
inquired about the promised records on December 1, 2016, and
shortly thereafter, BLM released twelve pages of records.
See BLM Correspondence at 54, 56-59; Compl. ¶
61.
BLM
continued reviewing records through January and February
2017. On January 3, 2017, BLM informed the plaintiff that it
was “working through a substantial amount of your
records” and “hop[ed] to have your records to you
very soon.” BLM Correspondence at 60. On February 28,
2017, acknowledging that the plaintiff was “looking for
hard dates, ” BLM informed the plaintiff that DOI-OS
had to finish reviewing “approximately 1, 200
pages” of documents. Id. at 61. The FOIA
Officer stated that, “[i]f everything goes accordingly
with the second set of documents, you should have them by the
end of March” and that “[g]etting the records to
you has become one of my top priorities.” Id.
On May 1, 2017, after not receiving any additional records,
the plaintiff sent a letter to BLM requesting “a
revised estimated completion date” and “a
disclosure plan for the release of the remaining documents
and records no later than the close of business on May 3,
2017.” Id. at 64. The plaintiff filed this
lawsuit on May 9, 2017. After the complaint was filed, but
without any court order directing disclosure, BLM released
569 pages to the plaintiff on June 30, 2017; 1, 294 pages on
July 28, 2017; and 57, 112 pages on August 31, 2017, for a
total of 58, 987 pages. Defs.' Opp'n at 5.
C.
Litigation History
The
plaintiff filed a complaint on May 9, 2017, seeking
declaratory and injunctive relief under the FOIA. See
generally Compl. On June 28, 2017, the parties filed
their first Joint Status Report, in which the DOI-OS
indicated that its response to the FOIA request was complete,
with three separate releases of records: “222 pages of
records on December 2, 2016; 5, 830 pages of records on May
25, 2017, and 314 pages on June 13, 2017.” First JSR at
1. BLM's search was “still underway, ” but
the agency had “produced twelve responsive pages in
December 2016” and had agreed, without the Court's
involvement, “to two releases, one on June 30, 2017 and
the final production on August 31, 2017.” Id.
at 1-2. These disclosures were timely made, with 569 pages
released on June 30, 2017, and 57, 112 pages released on
August 31, 2017, as well as 1, 294 pages released on July 28,
2017. Defs.' Opp'n at 5. Three months later, the
parties informed the Court that “[n]o document
production issues remain.” Joint Status Report dated
Sept. 29, 2017 (“Second JSR”) at 1, ECF No. 14.
The plaintiff subsequently “indicated that the
production [wa]s satisfactory, ” and the parties
ultimately settled all claims other than the plaintiff's
claim for attorney fees and other litigation costs, which
motion is now pending before ...