June 11, 2013
PRM’s Freedom of Information Act lawsuit against the Justice Department (DOJ) has seen additional activity in recent weeks. Earlier this year, Chief Magistrate Judge Arthur Boylan awarded attorney’s fees to PRM, after PRM sued DOJ in federal court over access to drone-related legal opinions. Find background on the lawsuit here and here.
In the wake of the fee award, DOJ objected to both the award itself, as well as to the amount. Due of the agency’s objections, Chief Judge Michael Davis undertook a review of the magistrate’s order.
On May 7, 2013, Judge Davis affirmed PRM’s award, and let the original fee amount stand. (Both DOJ and PRM had submitted briefs asking that the fee amount be modified, for differing reasons.) DOJ then asked for reconsideration of the matter – a request that PRM opposed.
On June 7th, Judge Davis issued a subsequent order, noting that he had reviewed PRM’s fee award under a higher “de novo” standard, and upheld it a second time.
Importance of the case to FOIA requesters
While PRM’s case did not result in the disclosure of documents (see our earlier post), its award of fees upholds an important principle of the FOIA – particularly in light of changes that Congress made to the Act in 2007. Those changes expanded the ability of FOIA requesters to obtain costs and fees as a result of litigation over FOIA matters.
In PRM’s original FOIA request, we sought legal opinions from the Office of Legal Counsel (OLC) related to lethal-force targeting by drones, both inside and outside of the United States. The OLC responded by evading part of our request, and responding in a vague and generalized way about two other remaining items in our request:
“We have identified several documents that are responsive to the remaining items in your request.”
One of those items involved legal memos about lethal-force targeting inside the U.S. – an issue of obvious (and increasing) interest to the public, given the Obama administration’s admitted use of drones against U.S. citizens elsewhere in the world. Both “remaining items” were withheld by OLC.
PRM filed an administrative appeal to contest the OLC’s withholding of records related to domestic drone use, and later sued when DOJ failed to answer the appeal after several months. Once litigation commenced, DOJ reversed its earlier statement that indicated the existence of responsive records, and claimed to hold no records. The agency subsequently backed-up its assertion with a sworn declaration in federal court. Once this declaration was filed, PRM agreed to dismiss the case. PRM then moved to seek fees in the case, since DOJ’s initial response to our FOIA request differed substantially from its later sworn statement.
Under the 2007 amendments to the FOIA, a requester who sues an agency can recover fees in a variety of circumstances, including circumstances where litigation caused the agency to “change position.” Such was the situation in our case, in which DOJ changed its position from indicating that it held responsive documents, to swearing that it did not hold such documents after all.
FOIA principles upheld
The FOIA allows requesters to recover attorney’s fees if they are compelled to engage in costly and time-consuming litigation in order to receive information they are due under the FOIA. In our case, DOJ could have provided clarity about its lack of records much earlier in the process – either in its original response, or during the administrative appeals process (a process during which DOJ did not respond to us at all).
We are pleased that the court has awarded (and now twice affirmed) a fee award in our case. We believe that the award underscores a fundamental principle of open government – that agencies must be forthcoming and clear in their responses to the public.