Administrative law - government agency withholding information, reimbursing attorney fees - Davy v. Central Intelligence Agency.

• Author: Heyman, Brett E.

Administrative Law--Government Agency Withholding Information, Reimbursing Attorney Fees--Davy v. Central Intelligence Agency, 550 F.3d 1155 (D.C. Cir. 2008)

Congress enacted the Freedom of Information Act (FOIA) in 1966 to allow private citizens wide access to government information protected by federal agencies. (1) In an effort to enable greater public access to government documents, Congress amended FOIA in 1974 to include a provision awarding attorneys' fees to any individual who substantially prevails in an action requesting agency information. (2) In Davy v. Central Intelligence Agency, (3) the United States Court of Appeals for the District of Columbia considered whether an author who publishes a book based, in part, on information obtained from the Central Intelligence Agency (CIA) in partial satisfaction of his request under FOIA is entitled to attorneys' fees. (4) The majority awarded the author attorneys' fees because he substantially prevailed in the earlier litigation, his interest in the information sought served a public benefit, he was not motivated entirely by commercial interests, and the CIA did not present a reasonable basis to deny disclosure of the information. (5)

On December 13, 1993, author and researcher William Davy, Jr. filed a FOIA request with the CIA seeking certain records pertaining to President John F. Kennedy, Jr.'s assassination. (6) Six years later, the CIA denied Davy's request. (7) Davy subsequently sued the CIA for its failure to produce the documents, although the CIA dismissed the complaint because the statute of limitations had expired. (8) Davy filed a second FOIA request with the CIA, which resulted in a joint stipulation for the production of responsive documents. (9) After producing only some of Davy's requested documents, the CIA successfully moved for summary judgment. (10) Davy then moved for attorneys' fees under [section] 552(a)(4)(E) of FOIA, and the United States Court of Appeals for the District of Columbia remanded the case, determining that Davy was eligible to receive attorneys' fees because he substantially prevailed in the district court action. (11) On remand, the district court denied Davy's request for attorneys' fees reasoning that the nature of Davy's claim was purely commercial and the CIA had a reasonable basis to deny production of the documents. (12)

Davy appealed the district court's ruling to the Court of Appeals for the District of Columbia. (13) The court of appeals reversed and held that Davy was entitled to attorneys' fees. (14) Using the four-prong FOIA test, the court first determined that the district court correctly weighed the "public benefit" factor in Davy's favor. (15) The court then decided that the district court had abused its discretion in determining that the second and third prongs weighed in the CIA's favor. (16) Finally, the court of appeals concluded that the district court erred in favoring the CIA under the fourth prong. (17) Weighing all the factors, the court of appeals reversed the district court's ruling and held that Davy was entitled to attorneys' fees. (18)

In 1974, Congress amended FOIA to include an attorneys' fees provision under a belief that such fees play a crucial role in promoting a strong national policy favoring an accessible government. (19) Under [section] 552(a)(4)(E)(i) of FOIA, "[t]he court may assess against the United States reasonable attorney fees and other litigation costs ... in any case ... in which the complainant has substantially prevailed." (20) For a plaintiff seeking disclosure of government agency records to "substantially prevail," courts require that the litigation merely result in agency disclosure of the requested documents. (21) Aside from a situation where a court rules in favor of the requester on the merits of the case, this disclosure may also result from either a court order or the agency voluntarily providing the information before the close of litigation. (22) Once a court determines that a plaintiff has substantially prevailed and is thus eligible to receive attorneys' fees, the court must then determine if an award is appropriate under the circumstances. (23)

In Tax Analysts v. United States Department of Justice, (24) the Circuit Court of Appeals for the District of Columbia set forth a four-prong standard to determine when a court should award attorneys' fees. (25) The four prongs include: the public benefit derived from the case, the plaintiff's commercial benefit, the nature of the plaintiff's interest in the requested documents, and whether the government has a basis for withholding the requested information. (26) Under the first prong, courts must look at both the effect of litigation and the potential value should the information become public. (27) Courts assess the second and third prongs, the plaintiffs commercial benefit and nature of the plaintiff's interest in the requested documents, by asking a single question: does the plaintiff have "sufficient private incentive to seek disclosure" without attorney fees? (28) Courts rarely consider scholarly, journalistic, and news interests "commercial" for FOIA purposes, regardless of any underlying private incentive. (29) The fourth prong asks whether the government agency had a reasonable basis at law for denying disclosure to the requester. (30)

Congress enacted the FOIA attorneys' fees provision to provide individuals who cannot afford to pay out-of-pocket expenses associated with litigation with an incentive to pursue document requests under FOIA. (31) Congress granted the courts discretion in awarding attorneys' fees to assist the average person in his quest for knowledge via documents under FOIA. (32) The purpose of the public-benefit prong is to promote the disclosure of information that increases the public's knowledge of important political and newsworthy events. (33) The court of appeals designed the second and third prongs to distinguish between the individual seeking only financial gain who does not need the incentive of attorneys' fees to pursue litigation, from the person requesting information for scholarly or newsworthy purposes who would not otherwise be able to pursue litigation. (34) Finally, the fourth prong was designed to urge the government to disclose requested information before litigation unless a reasonable basis to withhold exists. (35)

In Davy v. Central Intelligence Agency, (36) the District of Columbia Circuit Court of Appeals considered whether an author who received a portion of documents he requested from the CIA under FOIA was entitled to attorneys' fees. (37) The majority reasoned that Davy's request seeking "important new information bearing on the controversy over former [District Attorney Jim] Garrison's contention that the CIA was involved" in the JFK assassination served a public benefit. (38) The appeals court held that the district court erred in characterizing Davy's interest as "purely commercial" under the second and third prongs of the FOIA test, reasoning that a journalist seeking information under FOIA whose primary interest is scholarly does not qualify as having a "purely commercial" interest. (39) The majority also determined that the CIA did not present a "colorable basis at law" for denying Davy's request as required under the fourth prong. (40)

In his concurring opinion, Judge Tatel agreed with the majority's holding by focusing on FOIA's purposes. (41) Addressing the first prong, he reasoned that Congress specifically designed the attorneys' fees provision for Davy's case, when an average person seeking to reveal information to the public is potentially thwarted by a government agency that is "dig[ging] in" to keep that information private. (42) Analyzing the...