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FOIA COMMENTARY BY ACCESS REPORTS

IV. ANALYSIS

E. The Complaint

Text:

(a)(4)(B). On complaint, the district court of the United States in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records improperly withheld from the complaint. In such a case, the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).

Discussion:

This paragraph is the one which gives district courts jurisdiction to review alleged agency failure to comply with any of the FOIA's three disclosure provisions and to enjoin any improper withholding of agency records. In Sinito v. U.S. Dept. of Justice, 176 F.3d 512 (D.C. Cir. 1999), the court held that an FOIA lawsuit survives the death of the orginal requester, but remanded the case for a determination of whether the requester's son was the proper party to substitute within the meaning of Fed.R.Civ.P. 25(a). There are several concepts involved in this paragraph. Each is discussed below under an introductory heading.

Venue

A person who wishes to bring suit under the FOIA can do so in any of four jurisdictions (two or more of which may be the same):

1. the district in which the plaintiff resides;

2. the district in which he has his principal place of business;

3. the district in which the agency records are located; or

4. the District of Columbia.

In Arevalo-Franco v. INS, 889 F.2d 589 (5th Cir. 1989), the court rejected the government's argument that illegal aliens had no district of residence.

Statute of Limitations

FOIA suits are subject to the general six-year statute of limitations on actions against the federal government found in 28 U.S.C. §2401(a). The statute starts running on the date on which the requester is deemed to have exhausted his administrative remedies; i.e, either when the agency denies his administrative appeal, or when either of the administrative deadlines in 5 U.S.C. §552(a)(6)(A) expire. Spannaus v. Dept. of Justice, 824 F.2d 52 (D.C. Cir. 1987). Of course, the requester can start the process all over again simply by filing a new request (if the agency still has the records).

Jurisdictional Elements

There are three jurisdictional elements which must be satisfied before a court can grant relief in an FOIA suit: (1) the agency must have withheld records which are (2) agency records and (3) this withholding must have been improper (except in unusual circumstances, as discussed below, any withholding of agency records is improper if they are not exempt under Section (b)). There has been an increasing amount of litigation (including three Supreme Court decisions) on these jurisdictional elements. Each will be discussed in turn.

It is usually clear whether or not an agency has withheld records, but, as evidenced by the Supreme Court's decision in Kissinger v. Reporters Committee, 445 U.S. 136 (1980), subtle questions can arise. In that case the Court held that an agency could not withhold records which it no longer had in its possession -- even if the records had been wrongfully removed from the agency's custody. If there is no withholding at all, there obviously is no improper withholding for a court to enjoin. The Court did leave open, however, the question of whether a different result would be reached if "an agency official purposefully routed a document out of agency possession in order to circumvent a FOIA request." 445 U.S. at 155, n.9. See, National Security Archive v. Archivist of the U.S., 909 F.2d 541 (D.C. Cir. 1990).

As discussed above, the referral of a record to the originating agency by the agency which received the FOIA request can constitute a withholding within the meaning of this section. McGehee v. CIA, 697 F.2d 1095 (D.C. Cir. 1983). The courts have shown great reluctance, however, to overturn such referrals. See, Peralta v. U.S. Attorney's Office, 136 F.3d 169 (D.C. Cir. 1998).

In Dept. of Justice v. Tax Analysts, 492 U.S. 136, 109 S.Ct. 2841 (1989), the Court rejected "the Department's argument that an agency has not `withheld' a document under its control when, in denying an otherwise valid request, it directs the requester to a place outside the agency where the document may be publicly available." 492 U.S. at 150.

Even if an agency is clearly withholding records, that withholding cannot be enjoined under the FOIA unless it involves agency records. That phrase involves the concepts of "agency" and of "records." 5 U.S.C. §552(e), discussed below, defines both of these terms.

There is also a definition of "record" in the Federal Records Act (44 U.S.C. §3301), but it is intended only to define those categories of materials "made or received by an agency of the United States Government. . ." which must be preserved except as authorized by the Archivist. It seems clear that the concept of records for FOIA purposes includes at least everything within this definition and probably encompasses all tangible recordations of information, regardless of whether they are covered by the Federal Records Act definition. See BNA v. Dept. of Justice 742 F.2d 1484 (D.C. Cir. 1984).

It has been definitively established that the concept of records for FOIA purposes is not limited to written documents. E.g., Save the Dolphins v. Dept. of Commerce, 404 F.Supp. 407 (N.D. Cal. 1975) (movie on tuna fishing methods); Nichols v. United States, 325 F.Supp. 130 (D. Kan. 1971) (physical evidence from the Kennedy (JFK) assassination).

When these two concepts (i.e., agency and records) are merged into one, however, the result is not exactly the sum of the two parts. To be sure, there is a presumption that any record in the possession of an agency is an agency record for FOIA purposes, but that presumption is a rebuttable one.

The controlling case law concerning whether an agency exercises sufficient control over a record to make it an agency record for purposes of the FOIA is found in a trio of Supreme Court cases. Dept. of Justice v. Tax Analysts, 492 U.S. 136 (1989); Kissinger v. Reporters Committee, 445 U.S. 136 (1980); and Forsham v. Harris, 445 U.S. 169 (1980).

In Kissinger the Court held that summaries of conversations Henry Kissinger had while serving as the President's National Security Advisor were not agency records when created (because the Office of the President is not an agency) and did not become agency records when they were moved from the White House to Kissinger's office in the State Department after he became Secretary of State. "The papers were not in the control of the State Department at any time. They were not generated in the State Department. They never entered the State Department's files, and they were not used by the Department for any purpose." 445 U.S. at 157.

Forsham, as discussed below, established the principle that records generated outside of an agency could become agency records, but only if the agency in fact obtained them and exercised control over them.

In Tax Analysts the Court held that federal court decisions in the possession of the Tax Division of the Justice Department constituted agency records because:

1. the Tax Division had clearly obtained the decisions; and

2. the Tax Division controlled the documents.

In reaching that conclusion, the Court rejected as irrelevant arguments (whose factual correctness it accepted) that (1) the Tax Division had obtained the decisions from a non-agency, and (2) the courts retained authority to modify the decisions.

The Court also rejected the Department's contention that, when dealing with records generated outside the agency, the definition of agency records should be limited "`to those documents prepared substantially to be relied upon in agency decisionmaking'. . .Such a mens rea requirement is nowhere to be found in the Act." 492 U.S. at 147.

Nevertheless, as discussed below, there are numerous instances when attempts have been made to rebut the presumption that records in an agency's possession and apparent control are agency records.

One example is the concept of "personal records." In the leading case (despite its age) on this point, the court held that notes prepared by an agency employee for his personal use did not become agency records for FOIA purposes if their creation was completely voluntary and they were "not circulated to nor used by anyone other than the authors, and are discarded or retained at the authors' sole discretion for their own individual purposes in their own personal files." Porter County Chap., Etc. v. U.S. Atomic Energy Commission, 380 F.Supp. 630, 633 (N.D. Ind. 1974).

This principle was followed in British Airports Authority v. CAB, 531 F.Supp. 408 (D.D.C. 1982), but was not fully examined until the D.C. Circuit's decision in BNA v. Dept. of Justice, supra. In that case the court considered whether three categories of records (i.e., telephone message slips, daily agendas, and appointment calendars) were personal records rather than agency ones. The court rejected the government's arguments that: (1) an agency's use of a record is irrelevant to the question of whether it is an agency record for purposes of the FOIA; and (2) only materials considered "records" for purposes of the federal records management statutes can be agency records.

Under the case law, it is clear that, at least in some circumstances, the agency's use of a document is relevant for determining its status as an "agency record." Where, as here, a document is created by an agency employee, consideration of whether and to what extent that employee used the document to conduct agency business is highly relevant for determining whether that document is an "agency record" within the meaning of FOIA. Use alone, however, is not dispositive; the other factors mentioned in Kissinger must also be considered: whether the document is in the agency's control, was generated within the agency, and has ben placed in the agency's files. 445 U.S. at 157. The inquiry must therefore focus on the totality of the circumstances surrounding the creation, maintenance, and use of the document to determine whether the document is in fact an "agency record" and not an employee's record that happens to be located physically within an agency.

742 F.2d at 1492-93.

Applying this test, the court held that the telephone message slips and the appointment calendars were personal records but that the daily agendas were agency records. The key distinction was that the agendas were not created for the subject's personal convenience, but for the convenience of his staff and in their conduct of official business." Id. at 1494-96.

In Katz v. National Archives, 68 F.3d 1438 (D.C. Cir. 1995), the court held that photographs of the autopsy performed on President John F. Kennedy were "personal presidential records" rather than agency records.

In a refinement of this test, an appellate court held that records generated by a member of the National Labor Relations Board were not agency records despite the facts that: (1) her colleagues reviewed them and suggested changes; (2) NLRB staff typed some of them; (3) she mailed some of them in franked envelopes; and (4) she transmitted others via NLRB FAX machines. The basis for this result was a holding that "employing agency resources" in the generation of a record is not enough by itself to make that document an agency record. There must also be evidence of other employees' "reliance on the [records] to carry out the business of the agency. . ." Gallant v. NLRB, 26 F.3d 168, 172 (D.C. Cir. 1994).

In a rather bizarre decision the Fourth Circuit held that the home addresses of an agency's employees were not agency records because they had "nothing to do with the agency's `work,' and disclosure thereof would shed no significant light on the agency's inner workings." Am. Fed. of Gov. Employees v. Dept. of Health and Human Services, 712 F.2d 931, 933 (4th Cir. 1983). This opinion seems to run contra to all accepted definitions of agency records and has not been followed.

There are also precedents for the argument that at least in certain circumstances records created by (and possibly for) either the federal judiciary or Congress, and subsequently furnished to an agency, are records of that branch of the government rather than agency records, and are thus beyond the reach of the FOIA even though in an agency's possession.

The initial case on judicial records was Cook v. Willingham, 400 F.2d 885 (10th Cir. 1968), where the court held without explanation that presentence reports did not become agency records when furnished to an agency. The courts continued to wrestle with the status of presentence reports for some 15 years until the government abandoned its argument that presentence reports in the possession of the Parole Commission are not agency records. (Its stated reason for this change was 1983 amendments to Fed.R.Crim.P. 32(c)). Nevertheless, the cases involving this issue remain significant for their discussion of general principles concerning agency record issues.

One of them, Carson v Dept. of Justice, 631 F.2d 1008 (D.C. Cir. 1980), provides a useful tool in analyzing the D.C. Circuit's decisions on congressional records, for it provides a valuable clue as to what the court meant. The first of these decisions was Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), vacated in part, reh. denied, 607 F.2d 367 (D.C. Cir. 1979). The court held that a document which was (1) created by Congress, (2) classified at the time of its creation, and (3) sent to the agency with a clear manifestation of intent to retain control, remained a congressional record and therefore was not an agency record for FOIA purposes.

The court next considered this question in Ryan v. Dept. of Justice, 617 F.2d 781 (D.C. Cir. 1980). The records at issue were the responses from various Senators to a questionnaire from the Attorney General concerning the methods used to select the persons whom they had recommended for federal judgeships. It quoted language from Goland in support of its holding that such questions were to be decided on the basis of control, i.e., "whether under all the facts of the case the document has passed from the control of Congress and become property subject to the free disposition of the agency with which the document resides." 617 F.2d at 785.

Its explanation of this control test, however, appears to be unnecessarily broad. It indicated that courts should look "at the circumstances under which the document was generated -- whether it was generated by a non-agency, and how, and why -- and at the non-agency's intent in transferring the document to the agency." Id. This language has raised questions as to how the control test applies to records furnished agencies by private persons.

The uncertainty of this point is accented by dicta in an earlier Federal Trade Commission subpoena enforcement case. FTC v. Anderson, 631 F.2d 741 (D.C. Cir. 1979). The court indicated that an assumption that all subpoenaed documents were agency records "would require some distinction from the approach of our Goland and Forsham [discussed below] rulings." 631 F.2d at 750.

While the D.C. Circuit has not yet ruled directly on the question of subpoenaed documents, the Seventh Circuit has considered the question of records which General Electric provided unwillingly to the Nuclear Regulatory Commission to avoid a subpoena enforcement proceeding. General Electric Co. v. NRC, 750 F.2d 1394 (7th Cir. 1984). The court had no difficulty concluding that these records were agency records for purposes of the FOIA. It held that this concept clearly encompassed "documents submitted to the agency for use in carrying out its duties." Id. at 1400. It also held that no agreement between GE and the NRC could prevent these records from becoming agency records, and that a record's status as an agency record did not depend on the use the agency actually makes of it.

The D.C. Circuit has, however, rendered other opinions concerning congressional records as agency records. In Holy Spirit Ass'n v. CIA, 636 F.2d 838 (D.C. Cir. 1980), it applied the control test to hold that certain records generated by Congress and sent to the CIA had become agency records. The only evidence of congressional intent to retain control of the documents was a letter sent after the FOIA request had been received. It was not clear, however, whether the court rejected this letter because it was not sent until after the FOIA request or because it was not a sufficiently clear assertion of intent to retain control.

This confusion seems to have been largely eliminated in Paisley v. CIA, 712 F.2d 686 (D.C. Cir. 1983), where the court expressed the requirement in terms of "contemporaneous and specific instructions from" Congress concerning its intent to retain control of records after their transfer to an agency.

A separate but related issue is whether records created for Congress by an agency are congressional, rather than agency, records. The court rejected arguments to this effect in both Holy Spirit and Paisley but, although it expressed doubts as to whether such a transformation could take place, expressly refused to hold that records generated by an agency could never become congressional records for FOIA purposes.

Both the D.C. Circuit and the Supreme Court have held that there can be no control if there has never been any possession. Forsham v. Califano, 587 F.2d 1128 (D.C. Cir. 1978), aff'd sub. nom, Forsham v. Harris, 445 U.S. 169 (1980). The records at issue were ones generated by private grantees while conducting the research funded by the grants. The agency had a right to demand copies of these records but had not done so. It had, however, received a copy of a report based on these records (the report was an agency record) and which it had used in an internal deliberative process. The Court expressed its agreement "with the opinions of the courts below that Congress contemplated that an agency must first either create or obtain a record as a prerequisite to it becoming an `agency record' within the meaning of the FOIA." 445 U.S. at 182.

This holding is consistent with the control test described above, for it is difficult for an agency to control a record it did not create and has never possessed. The flip side of this argument is that possession does create a rebuttable presumption of control. Ryan v. Dept. of Justice, supra, 617 F.2d at 786. See also, Goland v. CIA, supra.

This standard is not absolute, however. In Burka v. Dept. of Health and Human Services, 87 F.3d 508 (D.C. Cir. 1996), the court held that records created pursuant to a contract and still in the contractor's possession were agency records because the agency:

1. ordered the creation of the records;

2. planned to take possession at the completion of the contract;

3. had indicated that it would make them public once researchers working under the contract had completed publication of their articles; and

4. prohibited the contractor from making any independent disclosure of the records.

A question which has not yet been answered is how the control test would operate when records were transferred to a non-agency but under an arrangement whereby the agency could require their return at any time. Arguably they are still under the agency's control although not in its possession, but in light of the Supreme Court's decision in Kissinger, this position is certainly not free from doubt.

There have been arguments raised that other types of records are not agency records, but in general the courts have not been particularly receptive. E.g., Weisberg v. Dept. of Justice, 631 F.2d 824 (D.C. Cir. 1980) (copyrighted materials); Crooker v. Office of the Pardon Attorney, 614 F.2d 825 (2d Cir. 1980) (records of the Pardon Attorney); Government Sales Consultants, Inc v. GSA, No. 77-1294 (D.D.C. 1979) (contract proposals).

In Wolfe v. Dept. of Health and Human Services, 711 F.2d 1077 (D.C. Cir. 1983), however, the court relied on Kissinger to hold that report prepared by the President-elect's transition team was not an agency record of HHS (it noted that the question of whether the transition team was itself an agency was not presented) despite the fact that a copy was located within the agency. It based this holding on the fact that it was found only in one official's personal files, and that it had never been used by any HHS official since the new administration had taken office. Attempts to distinguish Kissinger on grounds that (1) the report directly related to policies considered by the new administration, and (2) the report was "potentially available to HHS" were rejected. 359 F.Supp. at 278.

The final jurisdictional element which must be satisfied before a court can grant relief is that the agency's withholding (of agency records) be improper. Generally, a withholding will be proper only if the records are covered by an exemption in Section (b). In GTE Sylvania, Inc. v. Consumers Union, 545 U.S. 375 (1980), however, the Court held that an agency's withholding of even non-exempt agency records would not be improper if the agency were under an injunction from another district court not to release the records.

It is not clear whether this rationale would apply in situations where the government had acquiesced in the court's issuance of a protective order prohibiting the disclosure of specified records. An affirmative ruling would create a potential for collusion between agencies and private persons from whom they wished to obtain records. So far courts which have been presented with requests for such protective orders have generally ducked the question of whether they should be issued by ruling that the issue was not ripe until the agency had received an FOIA request and determined to release all or part of the records. E.g., FTC v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977).

In an unreported per curiam decision, however, the Second Circuit dealt with a situation where the district court issued a protective order guaranteeing the confidentiality of a settlement agreement between the Federal Deposit Insurance Corporation and an insolvent bank. An FOIA requester was allowed to intervene and appealed the rejection of its argument that a court's authority to issue such protective orders was limited to the grounds set forth in the FOIA exemptions. The court of appeals affirmed this rejection and stated that, once a protective order was issued, an agency's withholding from an FOIA requester is not improper. FDIC v. Ernst & Ernst, No. 81-7917 (2d Cir. 1982).

The same court held that an FOIA requester may intervene as a matter of right when an agency has agreed to a stipulated protective order. LaRouche v. FBI, 677 F.2d 256 (2d Cir. 1982).

The D.C. Circuit has revisited and narrowed the holding in GTE Sylvania. Morgan v. Dept. of Justice, 923 F.2d 195 (D.C. Cir. 1991), involved a request for FBI agents' handwritten notes taken during a robbery investigation. Justice denied it on the ground that a district court had placed the notes under seal and that therefore, under GTE Sylvania, the agency's withholding was not improper.

The lower court accepted this rationale, but the appellate one reversed, holding that the existence of a sealing order was not enough to deprive the agency of the authority to release. Agencies and courts must examine the actual terms of the order to determine its effect.

In sum, we hold that the mere existence of a court seal is, without more, insufficient to justify non-disclosure under the FOIA. Instead, only those sealing orders intended to operate as the functional equivalent of an injunction prohibiting disclosure can justify an agency's decision to withhold records that do not fall within one of the specific FOIA exemptions.

923 F.2d at 199.

In Tax Analysts, the government contended that an agency was not improperly withholding records if, instead of releasing them itself, it directed the requester to another source, or sources, where the records were available. "We rejected the Department's suggestion that GTE Sylvania invites courts in every case to engage in balancing, based on public availability and other factors, to determine whether there has been a[n] unjustified denial of information." 492 U.S. at 155.

As noted above in the discussion of Section (a)(4)(A), it is also not clear whether an agency's withholding of records because of the requester's refusal to pay the applicable search and duplication fees is subject to judicial review as an improper withholding on the theory that the agency's refusal to waive the fees was wrongful.

Standard of Review and Burden of Proof

The statute states expressly that the courts are to review the agency refusals to comply with FOIA requests on a de novo basis, and that the burden of proof is on the agency to justify its action. As a result, courts are not required to give any presumption of correctness to the agency's decision, and the agency cannot sustain its denial merely by showing that there was a rational basis for it. Instead, the agency must convince the court that its withholding was legally correct. The court makes its own independent (i.e., de novo) judgment, and, if it concludes that the records are not exempt, orders their release. E.g., Ethyl Corporation v. EPA, 478 F.2d 47, 49 (4th Cir. 1973).

In many of the early FOIA cases, however, district courts were willing to accept vague, conclusory claims of exemption. These decisions were generally vacated on the ground that the record did not justify withholding. Finally, in August, 1973, the D.C. Circuit grew tired of this repetitive procedure. In a remand order it set forth detailed guidelines for the type of record it expected to be created in an FOIA suit. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

It held that since the burden of proof in an FOIA case was on the agency, the agency should be required to index all records (or portions thereof) for which it claimed an exemption. The index was to contain a description of each category of material withheld (on a line-by-line basis if necessary), the exemption(s) claimed for each, and an explanation of why they applied. The court recognized that compiling such indexes, which are commonly known as Vaughn indexes, could place a great burden on agencies but expressed its belief that this was where the FOIA meant for the burden to be placed.

The requirements for an adequate Vaughn index have been refined in subsequent cases. E.g., Pacific Architects Eng., Inc. v. Renegotiation Board, 505 F.2d 383 (D.C. Cir. 1974); Cuneo v. Schlesinger, 484 F.2d 1086 (D.C. Cir. 1973). The Ninth Circuit requires a much more detailed Vaughn index than any of the other circuits. Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991). The procedure is now universally accepted as a standard one for FOIA cases so that a substantial majority are decided on the basis of the requester's pleadings on one side and the agency's Vaughn index with supporting affidavits on the other.

As a result, questions concerning the adequacy of the government's pleading frequently become a central issue in an FOIA case. Such questions are most common in Exemption 1 (i.e., national security) cases. These involve some considerations not generally applicable to the other exemptions and will be discussed in the Exemption 1 section below.

The generally accepted test for deciding an FOIA case in the Government's favor on the basis of a Vaughn index and supporting affidavits does, however, come from an Exemption 1 case:

The affidavits must show, with reasonable specificity, why the documents fall within the exemption. The affidavits will not suffice if the agency's claims are conclusory, merely reciting statutory standards, or if they are too vague, or sweeping. If the affidavits provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted by the record, and if there is not evidence in the record of agency bad faith, then summary judgment is appropriate. . .

Hayden v. National Security Agency/Central Security Service, 608 F.2d 1381, 1387 (D.C. Cir. 1979). See Oglesby v. U.S. Dept. of Army, 79 F.3d 1177 (D.C. Cir. 1996), for an example of a determination that a Vaughn index was inadequate.

The courts have been extremely critical of agency attempts to justify withholding documents in their entirety with general exemption claims. For example,

an agency seeking to withhold a document in its entirety under [Exemption 5 attorney work product] must identify the litigation for which the document was created (either by name or through factual description) and explain why the work-product privilege applies to all portions of the document.

Church of Scientology v. Dept. of Justice, 30 F.3d 224, 237 (1st Cir. 1994).

This same court found many Exemption 7(D) entries in the Vaughn index

that are insufficient because they either fail to specify whether the source was provided an express or implied promise of confidentiality, or do not provide sufficient detail about the surrounding circumstances to support an assertion of implied confidentiality. . .We do not believe it is sufficient, under Landano [see discussion under 7(D) below], to invoke Exemption 7(D) by stating generally that confidentiality was implied from a relationship between the author of the document [being withheld] and the investigation. . .We agree with the district court, however, that an investigator's policy of affording confidentiality in interviews is an adequate basis upon which the government may consider the information provided to the investigator to be confidential.

Id. at 238-39.

While it is certainly desirable, it is not an absolute requirement that the government's arguments, etc., be presented in a single affidavit. "So long as the affidavits interlock without confusion and clearly were drafted with each other in mind, there is no reason they cannot be thought of as a single `document.'" Afshar v. Dept. of State, 702 F.2d 1125, 1144 (D.C. Cir. 1983).

It should also be noted that the requirement of a Vaughn index is not an absolute one; e.g., no index will be required when only a small amount of material has been withheld, and the basis for the withholding is clearly explained in other pleadings. Antonelli v. Sullivan, 732 F.2d 560, 562 (7th Cir. 1984); Lykins v. Dept. of Justice, 725 F.2d 1455, 1464 (D.C. Cir. 1984). An appellate court may vacate a district court's decision, however, if it finds that the lower court erred in not requiring the preparation of a Vaughn index. Osborn v. IRS, 754 F.2d 195 (6th Cir. 1985). In Church of Scientology of Cal. v. IRS, 792 F.2d 146, 153 (D.C. Cir. 1986), the court of appeals rejected a district court's in camera examination of a small representative sample of a large number of records in lieu of requiring a Vaughn index.

While in camera individual inspection of each of a small number of documents without detailed public affidavits and Vaughn indices is sometimes acceptable. . .such an approach cannot be applied to large numbers of documents much less to large numbers of documents that represent only a sampling. Where supported by adequate Vaughn indices, however, an in camera review of a one percent sample may be sufficient.

Meeropol v. Meese, 790 F.2d 942 (D.C. Cir. 1986).

In In Re Department of Justice, 999 F.2d 1302 (8th Cir. 1993), the court sitting en banc reviewed a panel decision reported at 950 F.2d 530 (8th Cir. 1991), in which the panel had affirmed a district court order requiring a modified Vaughn index for records withheld under Exemption 7(A).

The panel first determined that the Department court not be required to provide a factual showing and explanation describing why each document is exempt. It went on to hold, however, that the Department could be required to make a specific factual showing to demonstrate why each document belongs in a certain category, along with an explanation describing why the category itself is exempt from disclosure.

999 F.2d at 1304.

The en banc court disagreed:

Under Robbins Tire, Exemption 7(A) does not require that the government produce a fact-specific, document-specific, Vaughn index in order to [justify withholding]. The contents of the requested documents are irrelevant. It is the particular categories of documents, and the likelihood that the release of documents within those categories could reasonably be expected to threaten enforcement proceedings, on which the court must focus. The district court, therefore, acted beyond the scope of its authority when it ordered the Department to produce a Vaughn index [for records it had withheld under Exemption 7(A)]. . .(emphasis added).

To satisfy its burden with regard to Exemption 7(A), the government must define functional categories of documents; it must conduct a document-by-document review to assign documents to proper categories; and it must explain to the court how the release of each category would interfere with enforcement proceedings.

999 F.2d at 1309.

There was a strong dissent to this decision which pointed out, inter alia, that under its procedures there was no way for a requester to challenge, or for a court to review, an agency's assignment of documents to categories, and that the court had in effect transformed Exemption 7(A) once more into a blanket exemption.

In Fiduccia v. U.S. Dept. of Justice, 185 F.3d 1035 (9th Cir. 1999), the court began its analysis of the requester's challenge to the adequacy of the agency's Vaughn Index by noting that there was no requirement for one when the agency met its burden of proof through other means. It then distinguished between withholding in full and releasing with redactions. In its view, a Vaughn Index was almost always necessary for records withheld in full, but often portions released of records with redactions were adequate for the requester to know the nature of the redacted portions. Unfortunately, the court did not discuss how the agency was to explain the justification for the redactions in this scenario.

A court's order that an agency prepare a Vaughn index of all records (rather than every 100th page as the agency had proposed) is not an appealable order under either 28 U.S.C. §1291 of §1292. Hinton v. Dept. of Justice, 844 F.2d 126 (3rd Cir. 1988). A great deal of uncertainty has arisen as to what action a court should take if it concludes that the government's pleadings are not adequate to justify summary judgment in its favor, but is not convinced that the records are outside the claimed exemptions. The court may, in its discretion, delve deeper into the case. The statute itself authorized in camera inspections (which may be of all, or of some agreed-upon sample of the records), but generally appellate courts will not overturn a district court's decision not to conduct one. E.g., Silets v. Dept. of Justice, 945 F.2d 227 (7th Cir. 1991); Carter v. Dept. of Commerce, 830 F.2d 388 (D.C. Cir. 1988). The fact that a case involves only a small number of records which the court could review in a short time does not affect a district court's exercise of this discretion. Young v. CIA, 972 F.2d 536 (4th Cir. 1992).

Congress did, however, give tacit recognition to the fact that courts may give "substantial weight" to agency affidavits on certain subjects. See new last sentence in 5 U.S.C. §552(a)(4)(B). In this same sentence Congress also specifically directed courts to give substantial weight to agency affidavits concerning the technical feasibility of indicating the exact location and extend of redactions, and the reproducibility of a record in the form or format desired by a requester.

The court can also appoint a special master to review the records in question -- even if those records are classified. In Re Dept. of Defense, 848 F.2d 232 (D.C. 1988). Finally, the court may conduct a trial with discovery, witnesses, cross-examination, etc. Washington Post Co. v. Dept. of State, 840 F.2d 26 (D.C. Cir. 1988).

It can also order the agency to release the records. E.g., Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980), in which the court relied "on a conclusion not that the documents are not exemption as a matter of law, but that the agency has failed to supply us with even the minimal information necessary to make a determination."

A year later, in a case involving the same parties, the Third Circuit indicated that it would be extremely reluctant to extend this decision beyond its particular facts. Coastal State Gas Corp. v. Dept. of Energy, 644 F.2d 969 (3rd Cir. 1981). It proceeded to reverse the district court's granting of summary judgment on the basis of an inadequate Vaughn index and held that the trial court should not (under the facts of this case) refuse to accept the government's revised index.

The court recognized, however, that agencies should not be allowed to shift their statutory burden of proof to FOIA requesters, or add to the court's workload, by filing inadequate pleadings:

To prevent such a reversal of statutory roles, it would not be unreasonable to require an agency, in order to survive a summary judgment, to rest on its first Vaughn index. . .Thus, non-production of evidence on account of undue delay or production of a grossly inadequate index which fails to indicate any material factual dispute, would constitute an "improper withholding" for purposes of the Act at the summary judgment state.

644 F.2d at 984.

It added in a footnote that it would seem more appropriate to order release on the basis of an inadequate Vaughn index in cases where the exemptions claimed were designed to protect governmental interests rather than private ones. 644 F.2d at 985 n. 80.

In what it recognized as a minority position, the Fifth Circuit has expressed the view that FOIA cases should never be decided solely on the basis of affidavits when there are existing records being withheld. Stephenson v. IRS, 629 F.2d 1140 (5th Cir. 1980).

By far the more widely-accepted rule can be found in Vaughn v. U.S., 936 F.2d 862 (6th Cir. 1991), in which the plaintiff appealed a district court's ruling that the government could withhold some 1,000 pages without either requiring a Vaughn index, or conducting an in camera inspection. Plaintiff contended that Vaughn v. Rosen and its progeny had "created a bright-line rule that a so-called `Vaughn Index' is necessary in every case," and that the district court's failure to require one here made its grant of summary judgment improper. 936 F.2d at 867.

The court of appeals rejected this argument, holding that while judicial interpretations did require that the government provide the court with sufficient factual and legal bases to justify its withholding of records, "no particular method of achieving those requirements is mandated." Id. Thus, it does not matter whether the requisite justifications come from an in camera review, a Vaughn index, government affidavits, oral testimony, or some combination of these methods.

In situations where the agency is seeking to withhold whether or not it has records within the scope of the request, it must file a public affidavit setting forth as much of its argument as it can without disclosing that which it is trying to protect. It must also seek leave to file an in camera affidavit. Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). It may also seek leave to file an in camera Vaughn index. Simon v. Dept. of Justice, 980 F.2d 782, 785 (D.C. Cir. 1992). The courts have been extremely conservative, however, in permitting these procedures. E.g., Gardels v. CIA, 737 F.2d 770 (D.C. Cir. 1980); Yeager v. DEA, 678 F.2d 315 (D.C. Cir. 1982).

In Arieff v. Dept. of Navy, 712 F.2d 1462, 1471 (D.C. Cir. 1983), the court stated that in camera affidavits should be permitted only "when (1) the validity of the government's assertion of exemption cannot be evaluated without information beyond that contained in the public affidavits and in the records themselves, and (2) public disclosure of that information would compromise the secrecy asserted."

In this same decision the court indicated that when a district court did authorize submission of in camera pleadings, or conduct an in camera review of the records themselves, it should not allow plaintiff's counsel to review the in camera materials. 712 F.2d at 1470-71 and n.2.

In Armstrong v. Executive Office of the President, 97 F.3d 575, 580 (D.C. Cir. 1996), the court said "that when a district court uses an in camera affidavit, it must both make its reasons for doing so clear, and make as much as possible of the in camera affidavit available to the opposing party."

As might be expected, FOIA plaintiffs have attempted to extend the Vaughn index requirements' application to an agency's administrative processing of their requests. So far they have been unsuccessful. As one court recognized, no matter how desirable or appropriate such an extension might be, there would be no way to enforce it since proceedings in the district court are de novo. Mead Data v. Dept. of Air Force, 566 F.2d 242 (D.C. Cir. 1977). "Moreover, an agency does not waive FOIA exemptions by not raising them during the administrative process." Young v. CIA, 972 F.2d 536, 538 (4th Cir. 1992).

A related issue is whether or not agencies can raise, through either a motion for reconsideration or on appeal, exemptions which they did not argue prior to a district court decision. In Jordan v. Dept. of Justice, 591 F.2d 753 (D.C. Cir. 1978), the court expressed a general rule under Fed.R.Civ.P. 8(c) that they cannot, but indicated that appellate courts could, as a matter of discretion under 28 U.S.C. §2106, remand for consideration of new exemption claims. The court indicated, however, that ordinarily such action should occur only when there has been "a substantial change in the factual content of the case or. . .an interim development in applicable legal doctrine." 591 F.2d at 780.

The presumption against allowing new exemption claims was strengthened in Ryan v. Dept. of Justice, 617 F.2d 781 (D.C. Cir. 1980), when the court expressed its view that, absent unusual circumstances, the government waived any exemption claims it did not raise in the district court. The waiver does not occur, however, until the agency files a responsive pleading within the meaning of the federal rules. Thus failure to raise an exemption in either a motion to dismiss or a motion for summary judgment does not constitute a waiver. Chilivis v. SEC, 673 F.2d 1205 (11th Cir. 1982).

Agencies can waive exemptions without filing a responsive pleading if they wait too long. "`Agencies [may] not make new exemption claims to a district court after the judge has ruled in the other party's' favor nor may they `wait until appeal to raise additional claims of exemption or additional rationales for the same claims.'" Senate of Puerto Rico v. Dept. of Justice, 823 F.2d 574, 580 (D.C. Cir. 1987), quoting Holy Spirit Association v. CIA, 636 F.2d 838, 846 (D.C. Cir. 1980).

Crooker v. Parole Commission, 760 F.2d 1 (1st Cir. 1985), involved a rather interesting fact situation concerning the issue of whether the government has waived its right to make any exemption claims not previously made in the district court. In the initial district court proceeding, the Parole Commission had relied principally on the argument that presentence reports were not agency records (see decision above, this heading), but also raised Exemption 3 as a basis for withholding. The district court held that presentence reports were not agency records, the court of appeals affirmed, and the Supreme Court granted certiorari. When the government abandoned the agency record argument before the Supreme Court, however, the Circuit Court decision was vacated and remanded. On remand, the First Circuit rejected the government's attempts to raise exemptions which it had not presented to the district court. it expressly rejected the holding in Cotner v. Parole Commission, 747 F.2d 1016 (5th Cir. 1984), to hold that, by deliberately choosing to raise one exemption, the government waived its right to raise others after abandonment of the argument that the reports were not agency records. See Fendler v. Parole Commission, 774 F.2d 975 (9th Cir. 1985). But see Lame v. Dept. of Justice, 767 F.2d 66 71 n.7 (3rd Cir. 1985).

The only exceptions to this general rule against allowing agencies to raise new claims or arguments appear to be "a substantial change in factual content of the case or. . .an interim development in applicable legal doctrine." Jordan v. Dept. of Justice, 591 F.2d 753, 780 (D.C. Cir. 1978). If an appeal, the court could exercise its discretion under 28 U.S.C. §2106 to remand for further proceedings.

In Ray v. Dept. of Justice, 908 F.2d 1549 (11th Cir. 1990), the State Department argued only Exemption 6 before the district court. After that court ruled in the requester's favor, and almost two years after the suit had been filed, the agency filed a motion to alter or amend the judgment, arguing for the first time that Exemptions 1, 7(C) and 7(D) also applied. The lower court denied the motion; on appeal the government argued that its failure to raise these claims sooner "was the result of pure mistake and that this court should decide these issues because they involve grave concerns of national security and foreign policy." 908 F.2d at 1557. The court of appeals recognized that if had the discretion to remand for consideration of the new claims but expressed its doubts that serious national security concerns would have gone unrecognized for almost two years. It found no reason not to apply "the fundamental rule that a defendant" normally waives defenses not raised in a responsive pleading." 908 F.2d at 1557.

In what appears to be an anomaly, one court held after a lengthy discussion that, despite some ambiguities in its past decisions, "a de novo standard of review applies on appeal from a district court's grant of summary judgment in FOIA litigation." Halpern v. FBI, 181 F.3d 279, 288 (2d Cir. 1999). Thus, it appears that the 2d Circuit would allow agencies to raise exemption claims on appeal that they had not argued before the district court.

Davis v. Dept. of Justice, 968 F.2d 1276 (D.C. Cir. 1992), presented interesting variations on both the questions of an agency's waiver of exemptions and the burden of proof. The case involved Title III electronic surveillance tapes which were part of a criminal investigation and prosecution. The government played portions of several of the tapes in open court but at the time of the FOIA suit had no record of which ones had actually been played. Both parties agreed that the government had waived any exemption claim for the portions played in open court but disagreed on which party had the burden of proof on that issue. The court held that:

a party who asserts that material is publicly available carries the burden of production on that issue. . .We conclude the, that to obtain portions of tapes alleged to be in the public domain, Davis has the burden of showing that there is a permanent public record of the exact portions he wishes. It does not suffice to show. . .that some of the tapes were played to shift the burden to the government.

968 F.2d at 1279, 1280.

Another common practice among FOIA plaintiffs is to ask the court to exercise its authority to conduct an in camera inspection. As both the plain language of the statute and the legislative history indicate, the decision whether or not to do so is within the sound discretion of the district court, but "in many situations it will plainly be necessary and appropriate." Source Book II at 226.

Congress also made clear in the 1974 Amendments that the courts' authority to order an in camera inspection extends to all withheld records, even those the government seeks to withhold under Exemption 1 for national security reasons. Id.

Moreover, courts are not limited to an all or nothing decision with regard to an in camera inspection; they may examine a representative sampling of the withheld records. Vaughn v. U.S., 936 F.2d 862 (6th Cir. 1991).

That procedure can, however, lead to other questions; e.g., whether or not the sample is truly representative. "The technique will yield satisfactory results only if the sample employed is sufficiently representative, and if the documents in the sample are treated in a consistent manner." Bonner v. Dept. of State, 928 F.2d 1148, 1151 (D.C. Cir. 1991).

Courts will not allow agencies to shift the burden of justifying their withholdings to the judiciary by voluntarily submitting the withheld records for an in camera inspection. "We decline to hold that the government can sustain its burden in this manner. While it is clearly appropriate for an agency to so tender its files, it cannot through such a tactic require the court to do its homework for it." Landano v. Dept. of Justice, 956 F.2d 422, 436 (3rd Cir. 1992).

While it remains rare for a court of appeals to disturb a district court's refusal to conduct an in camera inspection, such actions do occur. E.g., Allen v. CIA, 636 F.2d 1287, 1297 (D.C. Cir. 1980). In that decision the court listed various factors which should be taken into account:

1. judicial economy;

2. nature of the agency affidavits (i.e., whether conclusory or not);

3. evidence of bad faith on the part of the agency;

4. existence of a dispute concerning the content of a record;

5. whether inspection is proposed by the agency; and

6. existence of a strong public interest in disclosure.

In Ingle v. Dept. of Justice, 698 F.2d 259 (6th Cir. 1983), however, the court indicated that in camera inspection by a district court could also be an abuse of discretion but did not explain what, if any, sanctions could be imposed. Accord, J.P. Stevens & Co., Inc. v. Perry, 710 F.2d 136 (4th Cir. 1983).

Spirko v. U.S. Postal Service, 147 F.3d 992 (D.C. Cir. 1998) presented an interesting twist on this issue. The plaintiff alleged that the district court erred by conducting an in camera review instead of requiring the agency to produce a more detailed Vaughn index. The court implied that such a decision could be an abuse of discretion but held that it was not an abuse here because the combination of affidavits "sufficiently [explain] the contents of the withheld documents, the exemptions claimed for each page, the reasons for those exemptions, and the fact that none of the documents are segregable." 147 F.3d at 998.

There is also a prescribed standard of appellate review for FOIA cases. In Bowers v. Dept. of Justice, 930 F.2d 350 (4th Cir. 1991), the court reversed a district court order that the FBI release certain records. The FBI had raised claims under Exemptions 1, 2, 6 7(C), 7(D) and 7(E). The court of appeals summarized the role of appellate courts in FOIA cases as follows:

The standard of review in FOIA cases is limited to determining "whether (1) the district court had an adequate factual basis for the decision rendered and (2) whether upon this basis the decision reached is clearly erroneous." Spannaus v. Dept. of Justice, 813 F.2d 1285, 1288 (4th Cir. 1987) (quoting Willard v. Commissioner, 776 F.2d 100, 104 (4th Cir. 1985). Spannaus makes clear that the words `clearly erroneous' as used in that opinion do not refer to the standard of review provided by Rule 52(a) of the Federal Rules of Civil Procedure, and that any findings made on a summary judgment motion are not entitled to the clearly erroneous protection on review. Of course, legal errors are reviewed de novo.

930 F.2d at 353.

The court of appeals applied this standard to reverse here because the district court gave no indication that it had considered the detailed affidavits submitted by the agency in reaching its decision. It then took the rather unusual step of holding that a remand would serve no purpose and upheld the government's exemption claims.

In Summers v. Department of Justice, 140 F.3d 1077 (D.C. Cir. 1998), the court held that the district court's granting of the FBI's motion for summary judgment without any explanation constituted an abuse of discretion. It recognized that in view of the fact that appellate courts review grants of summary judgment de novo, they "do not require the district court to make findings of fact or conclusions of law in support of [those] orders . . . However, due to the peculiar nature of the FOIA, we have created exceptions to the normal summary judgment review processes applicable to litigation under that statute." 140 F.3d at 1079-80. It held that it was reversible error for a district court either to (1) fail to make specific findings as to whether any records withheld in their entirety contained reasonably segregable portions, or (2) deny a reasonable request from the plaintiff to clarify a grant of summary judgment to the government. See, Krikorian v. Department of State, 984 F.2d 461 (D.C. Cir. 1993); Schwartz v. Internal Revenue Service, 511 F.2d 1303 (D.C. Cir. 1975). It concluded by characterizing a three judge appellate court's having to conduct a de novo review in a FOIA case without benefit of an adequate district court opinion as a waste of judicial resources.

Judicial Remedies

Normally, the relief sought in a suit brought under Section (a)(4)(B) is to have an agency enjoined from withholding certain specific records. In appropriate circumstances, however, the court can enjoin an agency from withholding categories of records in the future even though the specific records may not be in existence. Long v. IRS, 693 F.2d (9th Cir. 1982). The court can also grant appropriate injunctive relief in cases where an agency has demonstrated a pattern of delaying release of records despite the fact that they were clearly not exempt. Payne Enterprises, Inc. v. U.S., 837 F.2d 486 (D.C. Cir. 1988).

F. The Answer or Responsive Pleading

Text:

(a)(4)(C). Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within 30 days after service upon the defendant of the pleading in which such complaint is made, unless the court otherwise directs for good cause shown.

Discussion:

No explanation is needed of this paragraph except to point out that normally the United States has 60 days to answer when it is the defendant in a civil suit.

G. Expedited Treatment for FOIA Cases

This paragraph has been repealed. Pub.L. 98-620, Title IV, Section 402(2), Nov. 8, 1984, 98 Stat. 3357.

H. Attorney Fees and Other Costs

Text:

(a)(4)(E). The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

Discussion:

This paragraph grants district courts the discretion to award "reasonable attorney fees and other litigation costs" to FOIA plaintiffs if they substantially prevail. Such a statutory grant of authority was required at the time of its enactment, for otherwise the so-called "American Rule" (established by a long series of judicial opinions) would preclude the assessment of these fees and costs against the sovereign. Now, of course, plaintiffs could seek fees under the Equal Access to Justice Act.

There are three questions presented in any attorney's fees issue in an FOIA case:

1. Is the plaintiff eligible for an award?

2. Is the plaintiff entitled to an award? and

3. What amount should be awarded?

These questions should be answered in the order listed, and if either 1 or 2 are answered "no," the analysis stops at that point, and the plaintiff does not receive an award.

The only criterion which a plaintiff must meet to be eligible for an award is the statutory one of having "substantially prevailed." The law is clear that this criterion does not require that the court have ordered the release of records; it is enough that the plaintiff obtained at least part of the relief sought after the FOIA suit was filed. E.g., Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704 (D.C. Cir. 1977).

It also does not require that the plaintiff obtain 51 percent or more of the records sought. It may be enough to obtain a small percentage in terms of volume of records if that percentage includes the records having the most significance. In fact, a requester may substantially prevail merely by succeeding in forcing the agency to process an FOIA request more rapidly than it would have absent the filing of a suit. Exner v. FBI, 443 F.Supp. 1349 (S.D. Cal. 1978), aff'd 612 F.2d 1202 (9th Cir. 1980).

In Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir 1976), the court held that to receive an award "a plaintiff must show at a minimum that the prosecution of the action could reasonably have been regarded as necessary and that the action had substantial causative effect on the delivery of the information." Accord, GMRI, Inc. v. EEOC, 149 F.3d 449 (6th Cir. 1998).

There has been some disagreement over whether these criteria apply to the question of eligibility or that of entitlement. A careful reading of the decision seems to support the latter, but the answer is not overly important since a failure to satisfy these criteria will have the same effect (i.e., no award) regardless of which question they are applied to.

Requesters must, however, show more than that the agency released records after suit was filed to establish the requisite causation. In Weisberg v. Dept. of Justice, 745 F.2d 1476 (D.C. Cir. 1984), the court vacated the district court's finding that the plaintiff had substantially prevailed as clearly erroneous because the lower court had failed to take into account the agency's arguments that its delay in processing (which delayed its release until after suit was filed) was justified, and that its release would have been exactly the same if the requester had not filed suit.

In a decision vacated on appeal, a district court held that a plaintiff substantially prevailed by successfully attacking an agency's chronic inability (resulting from a longstanding backlog and insufficient resources) to respond in a timely fashion to requests for records needed by attorneys for representation of their clients in deportation proceedings. Mayock v. INS, 736 F. Supp. 1561 (N.D. Cal. 1990). The court of appeals' reversal, however, was on the basis of its being inappropriate for the district court to grant summary judgment, not on any errors of law. Mayock v. Nelson, 930 F.2d 1006 (9th Cir. 1991).

Earlier, the D.C. Circuit had made it clear that "the findings of fact underlying a conclusion as to whether an FOIA litigant has substantially prevailed are reviewed under a clearly erroneous standard." Public Law. Educ. Inst. v. Dept. of Justice, 744 F.2d 181, 183 (D.C. Cir. 1984). In that decision the court ruled that the causal relationship between the suit and release must be a direct one. It rejected plaintiff's arguments advocating an indirect standard.

In another case, the D.C. Circuit dealt with a suit for release of a letter from a U.S. Senator (which was now an agency record of the Department of Justice). The Senator himself released a copy of the letter after the FOIA suit was filed. The court affirmed the district court's ruling that the plaintiff was not eligible for an award of attorney's fees because he had not established the necessary causal relationship between the suit and release. "Although the initial third-party release of a document at issue does not necessarily preclude a finding of a direct causal nexus, we know of no case, and have been cited to none, finding such a nexus where the purported causal link and evidence supporting it was as tenuous as herein." Pyramid Lake Paiute Tribe v. Dept. of Justice, 750 F.2d 117, 120-21 (D.C. Cir. 1984).

The fact that an agency may have released a large number of records before suit does not automatically bar an award, particularly if the records withheld were the more significant ones. Cazalas v. Dept. of Justice, 660 F.2d 612 (5th Cir. 1981). Accord, Anderson v. Secretary of Health and Human Services, 80 F.3d 1500 (10th Cir. 1996).

It has been held that an FOIA plaintiff's eligibility for an award can be waived. "In a FOIA action, no request for attorney's fees can be entertained unless specifically pled in the complaint or expressly sought by appropriate motion before judgment." Gregory v. Federal Deposit Ins. Corp., 631 F.2d 896, 899 (D.C. Cir. 1980).

If the court rules that the plaintiff is eligible for an award, it must then determine whether he is entitled to one. It is on this question that the court exercises its greatest discretion. The Senate revision of the 1974 Amendments included criteria for the exercise of this discretion right in the statute itself. These criteria were: (1) the public benefit which is likely to result from the relief obtained by the plaintiff; (2) the commercial benefit which the plaintiff will realize from this relief; (3) the nature of the plaintiff's interest in the relief; and (4) the reasonableness of the government's legal basis for resisting.

These criteria were eliminated from the statute itself in conference, but with the following explanation: "By eliminating these criteria, the conferees do not intend to make the award of attorney fees automatic, or to preclude the courts, in exercising their discretion as to awarding such fees, to take into consideration such criteria. Instead the conferees believe that because the existing body of law on the award of attorney fees recognizes such factors, a statement of the criteria may be too delimiting and is unnecessary." Source Book II at 227.

Courts have relied heavily on these four criteria in virtually every case and have emphasized that no one of them is to be considered controlling. Thus, theoretically at least, a plaintiff who sought records purely for his own commercial gain could be held entitled to an award if the agency's withholding were found to have been completely unreasonable. The court reached exactly this result in Seegull Mfg. Co. v. NLRB, 741 F.2d 882 (6th Cir. 1984), where it made clear its anger with the agency for relying on internal guidelines to withhold what it (the court) felt were clearly nonexempt records. It went so far as to state that "it would have been an abuse of discretion for the lower court to have denied attorney fees in this case." Id. at 886. In a footnote, the court stated the agency's conduct had been so egregious that vindication of the FOIA itself and deterrence of such conduct in the future provided sufficient public interest to satisfy the entitlement criteria in this case. Id. at 886, n.1.

A few months later, however, the same court held that a district court's decision that an agency's withholding had no reasonable basis in law (and that thus the plaintiff was entitled to an award of attorney's fees) should be reviewed using a de novo standard despite the fact that decisions holding that a requester is entitled to an award are "generally reviewed under an abuse of discretion standard." American Commercial Barge Lines Co. v. NLRB, 758 F.2d 1109, 1111 (6th Cir. 1985). Applying that standard, it held that the agency had had a reasonable basis here because the record related to an open enforcement proceeding, even though the one for which it had been compiled was closed.

The court of appeals in State of Texas v. ICC, 935 F.2d 728 (5th Cir. 1991), applied the more common abuse of discretion standard of review.

The district court did not specify which of the criteria Texas failed to satisfy. But so long as the record supports the court's exercise of discretion, the decision will stand. We are persuaded that the information ordered disclosed in Texas' suit is so devoid of public benefit that the trial court was within its discretion in denying Texas' request for fees.

935 F.2d at 7333.

In some interesting dicta the court strongly implied that it would find a public benefit supporting entitlement to an award of attorney's fees if the information disclosed either (1) revealed evidence of governmental wrongdoing, or (2) supported a conclusion of no wrongdoing in circumstances where there was an "independently generated cloud of suspicion to be dissipated." 935 F.2d at 734.

The court turned the public benefit criteria on its head in Chesapeake Bay Foundation v. Dept. of Agriculture, 108 F.3d 375 (D.C. Cir. 1997), when it held that the proper test is not the public benefit which might flow from the release of the records, but rather only that from the FOIA lawsuit itself. On this basis, it reversed the district court's holding that the requester's intended use of the records "to determine whether the use of pesticides in Maryland constituted a public safety hazard" was an adequate public benefit to entitle them to an award of attorneys' fees. 108 F.3d at 377. The court did not give any examples of what kinds of public benefit could result from the lawsuit as opposed to the disclosure of the records. If this interpretation becomes the prevailing one, awards of attorneys' fees will decrease significantly.

In Cotton v. Heyman, 63 F.3d 1115 (D.C. Cir. 1995), the court expressed its belief that the requester was never entitled to attorney's fees when the government made a discretionary release of records (i.e., released records it could have legally withheld). The court also emphasized that district courts must not ignore any of the four basic criteria. Accord, Chesapeake Bay Foundation v. Dept. of Agriculture, 11 F.3d 211 (D.C. Cir. 1993).

The courts have also recognized their obligation to consider any other criteria which might be relevant in a particular case. E.g., Nationwide Bldg Maintenance, Inc. v. Sampson, supra.

In Tax Analysts v. Dept. of Justice, 965 F.2d 1092 (D.C. Cir. 1992), the court considered the commercial benefit criteria as applied to news organizations.

If newspapers and television news shows had to show the absence of commercial interests before they could win attorneys fees in FOIA cases, very few, if any, would prevail. [Even though, however, the] FOIA's legislative history makes plain that Congress wanted news organizations to be treated favorably under the attorneys fees provisions. . .we are aware of nothing -- and Tax Analysts offers nothing -- that suggests that a litigant's status as a news organization renders an award of attorneys fees automatic, or that such a status renders irrelevant the news organization's other interests in the information.

965 F.2d at 1096.

The court went on to uphold the district court's finding that Tax Analysts was not entitled to attorneys fees "because it did not need the attorneys fees incentives [to pursue its judicial remedies] and because the material it obtained was already publicly available." Id.

The FOIA itself says only that fees awarded are to be "reasonable." Therefore the question of the amount to be awarded is not strictly an FOIA question. In fact the leading decisions are not FOIA cases. Blum v. Stenson, 465 U.S. 886 (1984), Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980), Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3rd Cir. 1976). The inquiry starts with the "lodestar," i.e., the number of hours reasonably expended times a reasonable hourly rate. This figure can then be adjusted upward or downward on the basis of the facts in each specific case. In Weisberg, supra, the court cited Blum, supra, as authority for the proposition that upward adjustments of the lodestar must be considered very carefully. "The clear teaching of Blum is that courts should be cautious in adjusting the lodestar rate to avoid duplication of fee awards that have already been accounted for in the basic fee calculation." 745 F.2d at 1499.

The court also held in Weisberg that "a prevailing plaintiff is not entitled to an attorney's fee award for `nonproductive time or for time expended on issues on which plaintiff ultimately did not prevail.'" Id.

Long v. IRS, 932 F.2d 1309 (9th Cir. 1991) is an interesting decision concerning the amount of attorney's fees to be awarded. In it the court of appeals reversed the district court's reduction in the fee amount requested by plaintiff because of its finding that the lower court had "failed to distinguish the standards applicable to these separate considerations [i.e., eligibility, entitlement, and amount] and misapplied the

law. . ." 932 F.2d at 1311. Specifically, it held that the district court erred in reconsidering factors properly related to the entitlement issue in evaluating the reasonableness of plaintiffs' fee request (despite a prior court of appeals decision that the Longs were both eligible for, and entitled to, an award).

The district court also erred in its consideration of Susan Long's specialized scholarly interest in the TCMP data as a factor that weighs against the award of attorney fees. A genuinely scholarly interest -- no matter how specialized -- clearly weighs in favor of a successful plaintiff's recovery of fees in a FOIA action."

932 F.2d at 1316.

The court also held that a person can be eligible for an award of attorney fees even if he was represented by his own law firm and did not have to pay any such fees. Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977).

But, see, Burka v. U.S. Dept. of Health and Human Services, 142 F.3d 1286 (D.C. Cir. 1998), in which the court held that an attorney could not recover on behalf of attorneys in his firm who worked on the suit when they did not enter an appearance, and there was no evidence establishing an attorney-client relationship.

There used to be a split among the circuits on the question of whether a pro se litigant, or an attorney representing him or herself, was eligible for an award of attorney's fees, but a Supreme Court case, Kay v. Ehrler, 499 U.S. 432 (1991), construing a similar attorney fees provision in the Civil Rights Act has apparently put those questions to rest. In an attorney fees case involving a pro se litigant decided after the Kay decision, the D.C. Circuit ruled that Kay required a finding that pro se laymen and attorneys were no longer eligible for fee awards. Benavides v. Bureau of Prisons, 993 F.2d 257 (D.C. Cir. 1993).

In State of Texas v. ICC, 935 F.2d 728 (5th Cir. 1991), the court of appeals reversed a district court holding that state and local governmental entities are not eligible for attorneys fees under FOIA.

In sum, if a FOIA plaintiff has actually and reasonably incurred legal fees -- that is, a lawyer has handled his case -- even if the lawyer is the plaintiff himself -- and if the plaintiff substantially prevailed, he may recover reasonable attorney fees from the federal government, provided that the court finds that the four discretionary criteria are satisfied. . .No class of complainants -- not even state governments -- is excluded.

935 F.2d at 731-32.

The D.C. Circuit has also held that 28 U.S.C. §1961 does not authorize the assessment of interest against the United States on the amount awarded as attorney fees under the FOIA. Holly v. Chasen, 639 F.2d 795 (D.C. Cir. 1981).

In Rosenfeld v. U.S., 859 F.2d 717 (9th Cir. 1988), the court held that the FOIA authorized the interim award of attorneys fees. "We do not believe that Congress, after waiving sovereign immunity from attorney's fees for citizens seeking the release of information, would countenance the government's dragging its heels, thereby forcing impecunious litigants to abandon their quest." 859 F.2d at 725.

I. Responsibility and Sanctions of Federal Officials

Text:

(a)(4)(F). Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether the agency personnel acted arbitrarily or capriciously with respect to the withholding the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his finding and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.

Discussion:

Three specific events must occur before the procedures specified by this paragraph are set in motion:

1. the court must order the production of records;

2. it must assess attorney fees and costs against the government; and

3. it must issue "a written finding that the circumstances surrounding the withholding raise questions whether the agency personnel acted arbitrarily or capriciously. . ."

Very few cases have been referred to the Special Counsel or its predecessor, and to date no agency employee has been disciplined.

J. Noncompliance With Court Order

Text:

(a)(4)(G). In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.

Discussion:

No explanation necessary.

K. Records of Votes of Agency Members

Text:

(a)(5) Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding.

Discussion:

No explanation necessary.

Next Section: L. Agency Response to Request