January 29, 2013
Public Record Media (PRM) has prevailed in its motion for attorneys’ fees in its Freedom of Information Act (FOIA) litigation against the U.S. Department of Justice (DOJ). In May of 2012, PRM sued DOJ over access to documents related to the potential use of lethal force by UAV drones within the United States.
In its initial response to PRM’s FOIA request, DOJ’s Office of Legal Counsel (OLC) provided two answers to PRM’s three-part request. First, OLC refused to confirm or deny the existence of records responsive to the first item of the request. Then, OLC further stated that it held documents “responsive to the remaining items” of the request. The two remaining items related to legal opinions regarding the use of lethal force by UAVs outside the United States (item two), and inside the United States (item three). OLC denied access to all responsive documents.
“No records” determination
PRM eventually sued to get access to “item three” documents relating to the possible domestic use of UAV drones. After the initiation of litigation, DOJ stated that it did not, in fact, possess “item three” documents. PRM continued its lawsuit up to the point where DOJ produced a sworn declaration regarding its representation, after which PRM moved to dismiss the suit.
DOJ’s declaration in the case stated that OLC did not – at least as of April, 2012 – possess any legal opinions related to the potential use of lethal force by UAVs within the United States.
Award of fees
Since DOJ waited until after PRM had filed suit before specifically stating that it had no responsive documents, PRM sought to recover its litigation costs.
On January 29, 2013, Chief Magistrate Judge Arthur J. Boylan issued an order on PRM’s motion for fees and costs, and awarded the organization $7,500.00 in attorneys’ fees, plus $350.00 for its filing fee. Fees were awarded due to the fact that PRM’s lawsuit caused DOJ to change its position in response to litigation. According to Judge Boylan’s order,
“In the present case, the Court finds that Plaintiff ‘s claim did in fact cause Defendant to change its position regarding the third-category request, and therefore Plaintiff “substantially prevailed,” making it eligible for an award of attorney’s fees …
The change from an initial, (seemingly) positive identification of documents relating to the government’s use of UAVs within its jurisdiction to the final conclusion that no such documents exist is a substantial change in position. Despite the fact that no documents were produced, the Plaintiff and the public at large can still glean important information from this change – namely, the government does not possess any documents related to the lethal use of UAVs within U.S. jurisdiction.”
Reduction of fee award
In his order, Judge Boylan noted that the fee award requested by PRM would be reduced from the amount sought, due to a lack of sufficient documentation. According to the order,
“Plaintiff is found to be both eligible and entitled to an award of attorney’s fees. However, because Plaintiff provided no documentation to support the hours it claimed to have expended on this case, the Court determines that Plaintiff’s work reasonably required 50 hours of work at its rate of $150 per hour.”
Links to Judge Boylan’s order, as well as PRM’s and DOJ’s briefs can be found here:
Order on Motion for Attorneys’ Fees and Costs
Plaintiff’s motion for Fees and Costs
Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Fees
Plaintiff’s Reply Memorandum in Support of Fees Motion
NOTE – This post was updated on February 14, 2013 to include links to the order and the case briefs.