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Assassination Archives and Research Center, Inc. v. Central Intelligence Agency

United States District Court, District of Columbia

April 4, 2019



          TREVOR N. McFADDEN, U.S.D.J.

         After Assassination Archives and Research Center (“Assassination Archives”) sued to enforce its Freedom of Information Act (“FOIA”) request, the Central Intelligence Agency released a document that has been publicly available since 2000, but with 96 words and a cover page newly unredacted. The litigation was neither protracted nor complex, but Assassination Archives now seeks attorney's fees of nearly $1, 000 per word added to the public domain. The Magistrate Judge's Report and Recommendation (“Report”) recommends denying Assassination Archives' request for fees. Over Assassination Archives' objections, the Court will accept the Report and deny Assassination Archives' motion for attorney's fees.


         Through an original and amended FOIA request, Assassination Archives sought records about any plots to assassinate Adolf Hitler, including the CIA's study of such plots in 1963 for plans to overthrow Fidel Castro. See Compl., Ex. 2 at 1, ECF No. 1-2. Assassination Archives also sought all records relating to Allen Dulles's communications about such plots during his service in the CIA or its predecessors. Id. The factual background of the case is more fully set forth in the Report. See Report at 1-4, ECF No. 35.

         After Assassination Archives sued, the CIA released a document titled “Propagandist's Guide to Communist Dissensions” (“Propagandist's Guide”) and five records related to its search for responsive records.[1] See Shiner Decl. ¶¶ 3-4, ECF No. 31-5. The parties filed cross-motions for summary judgment, and this Court granted the CIA's motion and denied Assassination Archives' motion. See Assassin'n Arch's & Res'rch Ctr., Inc. v. CIA, 317 F.Supp.3d 394, 405 (D.D.C. 2018) (“Assassin'n Arch's I”). But because the CIA had disclosed the Propagandist's Guide during the litigation, Assassination Archives moved for attorney's fees and costs, totaling $103, 858.00. Pl.'s Mot. for Fees at 16, ECF No. 30; Pl.'s Reply for Fees (“Pl. Reply”) at 19, ECF No. 32. The case was referred to Magistrate Judge Harvey for full case management, and his Report recommends denying Assassination Archives' fee request. Report at 15. Assassination Archives objects.


         When a party objects to a magistrate judge's Report, the Court reviews de novo any part of the magistrate judge's disposition to which a party properly objects. Fed.R.Civ.P. 72(b)(3). The district court may then “accept, reject, or modify the recommended disposition.” Id.

         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). The attorney fee inquiry is divided into “eligibility” and “entitlement” prongs. See Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363, 368- 69 (D.C. Cir. 2006). “The eligibility prong asks whether a plaintiff has substantially prevailed and thus may receive fees.” Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 524 (D.C. Cir. 2011) (internal quotation marks omitted). To “substantially prevail, ” a plaintiff must show that he has obtained relief through 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 524-25.

         If a plaintiff is eligible for fees, courts consider four factors to determine whether it has a right to fees: “(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) (“Morley 2013”). “No one factor is dispositive.” 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. U.S. Dep't of Justice, 965 F.2d 1092, 1094 (D.C. Cir. 1992).



         Assassination Archives raises three objections to the Report. Assassination Archives first objects to the Report's reasoning in the four-factor entitlement analysis. It alternatively argues that the Court should abandon the four-factor test because it does not follow the plain language of FOIA. But Assassination Archives' arguments are unpersuasive, and the Court accepts the Report's recommendation denying Assassination Archives attorney's fees.

         First, Assassination Archives complains that the Report undervalued the public benefit from its request. See Pl.'s Obj. to Report (“Pl. Obj.”) at 7-9, ECF No. 36. Evaluating the public benefit factor “requires consideration of both the effect of the litigation for which fees are requested and the potential public value of the information sought.” Davy, 550 F.3d at 1159. Viewed solely afterward, Assassination Archives' request required a significant expenditure of federal resources with scant payoff for the public. From this perspective, a request for attorneys' fees is highly unwarranted. But the “effect of the litigation inquiry” asks “simply whether the litigation caused the release of requested documents, without which the requester cannot be said to have substantially prevailed.” Morley v. CIA, 810 F.3d 841, 844 (D.C. Cir. 2016) (“Morley 2016”).[2]

         In any event, the public benefit analysis mainly requires an ex ante assessment of “the potential public value of the information requested, with little or no regard to whether any documents supplied prove to advance the public interest.” Id. To have “potential public value” the request “must have at least a modest probability of generating useful new information about a matter of public concern.” Id. The public benefit factor weighs in a complainant's favor “where the complainant's victory is likely to add to the fund of information that citizens may use in making vital political choices.” Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979) (quoting Blue v. Bureau of Prisons, 570 F.2d 529, 534 (5th Cir. 1978)).

         Assassination Archives sought records related to plots to assassinate Hitler and the CIA's later study of those plots related to overthrowing Castro. Assassination Archives claims the potential public benefit of its FOIA request is strong because it is related ...

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