MEMORANDUM OPINION
BERYL
A. HOWELL, CHIEF JUDGE
Pending
before the Court is the plaintiff Laura Poitras's motion
for attorneys' fees and costs, pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. §
552(a)(4)(E), against the defendants Department of Homeland
Security (“DHS”), the Department of Justice, and
the Office of the Director of National Intelligence
(“ODNI”). See Pl.'s Mot. Att'ys
Fees (“Pl.'s Mot.”), ECF No. 45. The
underlying FOIA requests sought records related to the
“plaintiff and her repeated border stops and detentions
at airports while traveling in pursuit of her journalistic
endeavors.” Id. at 1. Shortly after the
plaintiff initiated this lawsuit, several of the
defendants' components released previously withheld
records responsive to the plaintiff's FOIA requests,
prompting the plaintiff to contend that she is both eligible
for, and entitled to, attorneys' fees. See generally
Id. The defendants concede the plaintiff's
eligibility but contest her entitlement to attorneys'
fees. See generally Defs.' Opp'n to
Pl.'s Mot. (“Defs.' Opp'n”), ECF No.
48. For the following reasons, the plaintiff's motion is
denied.
I.
BACKGROUND
Set out
below is the procedural and factual background relevant to
the plaintiff's pending motion, with a fuller account
provided in the Court's previous opinions resolving the
parties' cross-motions for summary judgment. See
Poitras v. U.S. Dep't of Homeland Sec.
(“Poitras II”), 303 F.Supp.3d 136,
143-49 (D.D.C. 2018); Poitras v. U.S. Dep't of
Homeland Sec. (“Poitras I”), No.
15-CV-1091 (KBJ), 2017 WL 7053929 (D.D.C. Mar. 31, 2017).
A.
The Plaintiff's FOIA requests
The
plaintiff is a U.S. citizen, a journalist, and an
Oscar-winning filmmaker who, between July 2006 and April
2012, was subjected to “Secondary Security Screening
Selection” at the United States border for every
international flight she took into the country. Compl.
¶¶ 2- 3. The plaintiff was subjected to the same
screening prior to several international flights out of the
United States and some domestic flights. Id. ¶
3. In total, the plaintiff was detained for secondary
screening more than 50 times over the six-year period.
Id. ¶ 3.
“[O]ut
of [her] desire to understand why she was stopped, detained,
and questioned at the U.S. border by her own government for
every international flight she took entering her own country
for six years, ” see Pl.'s Mem.
Opp'n to Defs.' Second Mot. Summ. J. & Mem. Supp.
Pl.'s Second Cross-Mot. Summ. J. (“Pl.'s Second
Mem.”) at 1, ECF No. 26 (emphasis in original), the
plaintiff, on January 24, 2014, sent FOIA requests to the
Federal Bureau of Investigation (“FBI”), to ODNI,
to DHS, and to several DHS components, including U.S. Customs
and Border Protection (“CBP”), U.S. Citizenship
and Immigration Services (“USCIS”), U.S.
Immigration and Customs Enforcement (“ICE”), the
Transportation Security Administration (“TSA”),
for “all agency records concerning, naming, or relating
to Ms. Poitras.” Compl. ¶¶ 27-29.
B.
The Defendants' Responses to the Plaintiff's FOIA
Requests
Initial
responses to the plaintiff's FOIA requests varied. DHS
sent the plaintiff a letter on February 3, 2014 confirming
receipt of her request and asking for additional search
parameters. Defs.' First. Mot. Summ. J.
(“Defs.' First Mot.”), Decl. of Kevin L.
Tyrell (“DHS Decl.”) ¶ 8, ECF No. 14-8.
After the plaintiff provided clarification, DHS responded, on
March 26, 2014, informing the plaintiff that her request had
been referred to CBP and TSA. Id. ¶¶
10-11.
TSA,
for its part, on February 6, 2014, and again on March 26,
2014, acknowledged receipt of the plaintiff's FOIA
request but asked for additional information to help identify
the requested records. Defs.' First Mot., Decl. of Regina
Ann McCoy (“TSA Decl.”) ¶¶ 7, 10, ECF
No. 14-4. The plaintiff never provided the information TSA
solicited. Id. ¶¶ 9, 11.
Although
CBP did not acknowledge to the plaintiff receipt of her FOIA
request, Compl. ¶ 37, upon such receipt, CBP began
searching databases thought most likely to have responsive
records, Defs.' First Mot., Decl. of Sabrina Burroughs
(“CBP Decl.”) ¶ 5, ECF No. 14-3.
The
FOIA request sent to ICE was delivered to the wrong address,
and so, unremarkably, ICE was unaware of the plaintiff's
request until the civil complaint was filed. Defs.' First
Mot., Decl. of Fernando Pineiro (“ICE Decl.”)
¶¶ 5-11, ECF No. 14-7. In any event, ICE did not
have responsive records. Id. ¶ 37.
USCIS,
upon receipt of the plaintiff's request, sent two
letters-one on January 30, 2014 and the other on April 2,
2014-informing the plaintiff that USCIS had no responsive
records. Defs.' First Mot., Decl. of Jill A. Eggleston
(“USCIS Decl.”) ¶¶ 7-8, ECF No. 14-6.
The plaintiff administratively appealed USCIS's
determination that it had no responsive records, but that
appeal was denied. Id. ¶ 9.
ODNI,
on January 31, 2014, confirmed receipt of the plaintiff's
FOIA request, Compl. ¶ 67, but informed her, on February
25, 2014, that the agency could neither confirm nor deny the
existence of responsive information that may have been
classified, Defs.' First Mot., Decl. of Jennifer L.
Hudson (“ODNI Decl.”) ¶ 21, ECF No. 14-2.
The plaintiff administratively appealed the denial the
request sent to ODNI, id. ¶ 22, which appeal
was pending at the time the plaintiff filed her complaint,
Compl. ¶¶ 69, 71.
Finally,
the FBI sent the plaintiff a letter on February 19, 2014
acknowledging receipt of the FOIA request, see
Defs.' First Mot., First Decl. of David M. Hardy
(“First FBI Decl.”) ¶ 7, ECF No. 14-1, and
then, on February 2, 2015, referred “sets of pages to
other agencies, including [U.S. Army Criminal Investigation
Command], the U.S. Army, the Executive Office for United
States Attorneys (“EOUSA”), the Department of the
Air Force, the U.S. Army Intelligence and Security Command
(“USAISC”), the Central Intelligence Agency
(“CIA”), CBP, the Department of State, the
Department of Transportation, and the National Guard Bureau
for direct response to the plaintiff or for coordination with
the FBI, ” Poitras II, 303 F.Supp.3d at 146
(citing First FBI Decl. ¶¶ 96-109). Despite the
lack of any adverse determination on the plaintiff's FOIA
request, the plaintiff, on May 29, 2015, filed an
administrative appeal with the FBI's Office of
Information Policy. First FBI Decl. ¶ 8. On July 13,
2015, the same day that the plaintiff initiated this lawsuit,
the Office of Information Policy informed the plaintiff that
the FBI had not made any decisions about the plaintiff's
FOIA request and, consequently, no decision was subject to
administrative review. Id. ¶ 9.
At
bottom, although several of the agencies had responded to the
plaintiff's FOIA request, or were in the process of doing
so, as of July 2015, none of the entities to which the
plaintiff had submitted a FOIA request had produced
responsive records. See Poitras I, 2017 WL 7053929,
at *1. Accordingly, the plaintiff filed her complaint, on
July 13, 2015, alleging that each agency to which she
submitted a FOIA request had “wrongfully withheld
agency records requested by Plaintiff by failing to comply
with the statutory time limit for the processing of her FOIA
requests, and/or by rendering final decisions to withhold the
records Plaintiff requested.” Compl. ¶ 76.
After
the plaintiff filed her complaint, the Court ordered the
parties to confer about a proposed schedule either for
briefing or for the disclosure of records responsive to the
FOIA requests. Min. Order (Sept. 18, 2015). The result was an
agreement “that FBI, CBP, and TSA [would] begin
producing non-exempt responsive records no later than
November 13, 2015.” Joint Status Report (Oct. 1, 2015)
at 2, ECF No. 8. Additionally, by the same date, ODNI agreed
to “provide Plaintiff with an interim or final response
to her administrative appeal.” Id.
To
identify responsive records, the FBI used the search terms
“‘Laura Poitras,' ‘Laura Susan
Poitras,' ‘Lara Susan Poitras,' a three-way
phonetic breakdown of ‘Laura Poitras,' and an
on-the-nose search for ‘Laura Susan Poitras' and
‘Lara Susan Poitras.'” Poitras II,
303 F.Supp.3d at 147. From those searches, the FBI made five
releases of information between October 14, 2015 and March 4,
2016. First FBI Decl. ¶¶ 12-16.[1] “In total,
the FBI identified 350 responsive pages, released in full 1
page, released in part 262 pages, and withheld in full 87
pages.” Poitras II, 303 F.Supp.3d at 146-47.
The redactions were applied pursuant to FOIA Exemptions 1, 3,
5, 6, 7(A), 7(C), 7(D), and 7(E). Id. at 147. Later,
between the two rounds of summary judgment briefing that
eventually ensued, “the FBI discovered that three
records relating to the closure of the investigation into
Plaintiff's activities in Iraq had been inadvertently
missed and not previously produced to Plaintiff.” Joint
Mot. to Temporarily Suspend Briefing at 1, ECF No. 27;
see also Defs.' Reply Supp. Second Mot. Summ. J
& Opp'n Pl.'s Second Cross-Mot. Summ. J., Fourth
Decl. of David M. Hardy (“Fourth FBI Decl.”)
¶ 4, ECF No. 29-1 (“Upon review of the final
production of this [FOIA/Privacy Act] request, it was
determined that three (3) serials, consisting of six (6)
pages related to the closure of the FBI's investigation
into Plaintiff's activities in Iraq, had been
inadvertently overlooked during the processing phase and were
not processed and provided to Plaintiff.”). The
plaintiff received those six pages on September 25, 2017,
revealing that the FBI had investigated the plaintiff's
involvement in a November 2004 ambush of U.S. Soldiers in
Iraq, which resulted in the death of one soldier, but, as of
August 30, 2012, the FBI had concluded that “[b]ased on
the investigation to date, it is not believed that POITRAS is
involved in terrorist activities and investigative methods
have not revealed threats to national security warranting
further action.” Pl.'s Mot., Ex. A, FBI Electronic
Communication (Aug. 30, 2012), ECF No. 45-1.
As for
CBP, that agency, upon receipt of the plaintiff's FOIA
request, searched two internal systems-TECS and the Automated
Targeting System-“using Plaintiff's name and date
of birth.” Poitras II, 303 F.Supp.3d at
147. On November 12, 2015, after the plaintiff
initiated this lawsuit, CBP released 492 pages of records
from TECS and 220 pages of partially redacted records found
in the Automated Targeting System. Id. Later, CBP
became aware of records likely to be found in a New York
office related to an August 1, 2010 incident at JFK
International Airport, and, on February 27, 2016, after
conducting a supplemental search utilizing search terms
including “Poitras, ” “Laura Poitras,
” and the name and email address ...