FOIA reforms still leave some holding the tab

From the Summer 2008 issue of The News Media & The Law, page 18.

By Miranda Fleschert

Twenty-two years ago, John Davis was writing a book on the mafia. He asked the FBI for audiotapes of reputed Mob boss Carlos Marcello’s trial. Fast-forward to 2008: the agency released nearly all the 163 tapes he wanted but, after years of litigation on the matter, Davis’s legal bill has soared to $111,000.

Davis is among a group of requesters who are struggling to recover attorney’s fees from agencies that have withheld records, despite 2007 FOIA amendments intended to make doing so easier. His group may fall into a gray area not addressed by the legislation.

Sens. Patrick Leahy (D-Vt.) and John Cornyn (R-Tex.) joined forces last year to improve government transparency with the 2007 Openness Promotes Effectiveness in our National (OPEN) Government Act, the first meaningful reforms to the Freedom of Information Act in more than a decade. It passed Congress late last year, with President Bush signing it into law Dec. 31.

One provision created an ombudsman to mediate FOIA disputes.

Another dealt with attorney’s fees. In the past few years, according to several requesters’ lawyers, agencies have been sitting on FOIA requests and stalling through litigation before finally, in the face of losing at trial, turning over the records. That way, they avoid having to fork over thousands of dollars in attorney’s fees, leaving claimants like Davis to foot the bill.

Leahy and Cornyn sought to fix this problem with the 2007 amendments that say plaintiffs who get agencies to disclose records at any point during litigation can recoup attorney’s fees. This encourages agencies to turn over records from the start rather than using the government’s vast litigation resources against individual requesters.

What to do with requests filed but not yet resolved when the amendments passed Dec. 31? The legislation did not expressly address whether the amendments apply retroactively, leaving the matter for the courts to resolve.

So far, the answer isn’t clear. And many in this group of plaintiffs, like Davis, are in limbo.

Three courts have ruled that the attorney’s fees amendments can have retroactive application. But with at least two federal court decisions disagreeing, the issue is far from settled.

Attorney’s fees amendments restore “catalyst theory”

Davis’s case highlights the fees problem. Because the FBI “voluntarily” produced most of the tapes Davis requested, albeit years later, Davis was not considered to be a “prevailing party” entitled to attorney’s fees under the law — even though his lawsuit prompted the release of the tapes.

Under the U.S. Supreme Court’s ruling in Buckhannon Board and Care Home, Inc. v. West Virginia Dep’t of Health and Human Resources, which was not a FOIA case, claimants were required to be the “prevailing party” before attorney’s fees could be awarded. Then, in 2002, the U.S. Court of Appeals for the District of Columbia held in Oil, Chemical & Atomic Workers International Union, AFL-CIO v. Department of Energy, (OCAW) that Buckhannon extends to FOIA cases.

However, for years prior to Buckhannon and OCAW, requesters relied on the “catalyst theory,” which allowed claimants to recover attorney’s fees from federal agencies that withheld records, so long as their litigation motivated the release of the documents.

This makes the roughly five-year period in which courts applied Buckhannon to FOIA a “brief interlude where there was an aberrant judicial departure from three decades of consistent judicial practice,” said James H. Lesar, who is representing Davis.

Lesar also points out the irony of Davis’s decades-long battle with the FBI: “This case has been going on for 20 years, and during three-fourths of that time, there was no question that the standard for determining eligibility for attorney’s fees was based on the catalyst theory,” he said.

The new amendments — including the so-called Buckhannon “fix” — clarify that a plaintiff can “substantially prevail” in a FOIA lawsuit without a judgment on the merits if, like Davis, his or her lawsuit served as the “catalyst” that prompted the agency to voluntarily release the records. In doing so, the amendments restore the catalyst theory and prevent application of Buckhannon to FOIA cases.

The catalyst theory is critical to the effective enforcement of FOIA, said Adina Rosenbaum, an attorney for the Public Citizen Litigation Group, a non-profit, consumer-advocacy organization that filed a friend-of-the-court brief in Davis v. Department of Justice. Since government agencies can easily render a FOIA action moot by releasing the requester’s records, the Buckhannon principle eliminated the incentive for agencies to comply with FOIA prior to being sued.

“In order for FOIA to be enforced, there has to be a way for requesters to get what they are legally entitled to, without having to pay tens of thousands of dollars in litigation costs,” Rosenbaum said.

The cost is so prohibitive that most FOIA requesters don’t even try to find representation to take their cases to court, Lesar said. “They just give up, assume they can’t afford the cost of the legal system, and they can’t,” he said, adding that he fronted the money for Davis’s case himself.

The retroactivity problem

Now, the attorney’s fees amendments prevent agencies from sticking requesters with years of litigation costs. But for Davis and others whose ongoing suits began before the legislation’s enactment, there is no guarantee they will ever recoup attorney’s fees.

So far, three judges agree that attorney’s fees amendments apply retroactively. As for Davis, a recommendation by a magistrate judge in the U.S. District Court for the District of Columbia came down in his favor,finding that since the attorney’s fees issue was collateral to the main cause of action, the provision fell into an exception to the usual presumption against retroactivity. Magistrate Judge Alan Kay noted that under Bradley v. School Board of the City of Richmond, courts are to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice, or is statutorily prohibited. He awarded Davis more than $111,000 in attorney’s fees.

But the Department of Justice has already filed objections to the magistrate’s recommendation and Lesar says an appeal is likely to follow, regardless of whether the district court judge approves the magistrate’s recommendation. Charles S. Miller, a DOJ spokesman, declined to comment on the Davis case because it involves a matter in litigation.

Still, any decisions issuing from courts in the D.C. Circuit could carry extra weight since courts often look to the D.C. Circuit for guidance on FOIA matters. Requesters can properly bring their FOIA actions in the U.S. District Court for the District of Columbia no matter where they live, so the majority of FOIA cases are heard there.

Two more cases in the circuit are also addressing the issue. Chief Judge Royce Lamberth of the D.C. District Court ruled in late June that Congress intended the OPEN Government Act to apply retroactively, even though the statute doesn’t expressly address the issue. He awarded the government watchdog group Judicial Watch $3,605 to cover the cost of its FOIA action against the Bureau of Land Management.

But the following week, D.C. District Court Judge Reggie B. Walton contradicted Lamberth’s ruling when he held that the legislation would have had to explicitly address retroactivity to be applied that way. He declined to award attorney’s fees to NYC Apparel, an exporter of merchandise from the United Arab Emirates, in its FOIA case against the U.S. Customs and Border Protection Bureau, stating that the amendments had only “prospective force” from their date of enactment. A federal district court in Missouri also ruled in favor of the government in Zarcon, Inc. v. NLRB in March.

Lesar says decisions ruling that the amendments cannot be applied retroactively run contrary to Congress’s intent. Congress simply assumed that the amendments would apply retroactively because the original FOIA amendments were retroactive, he argues. Opponents maintain that Congress should have expressly stated retroactivity.

The matter won’t be settled until the D.C. Circuit rules on the retroactivity problem. Another one of Lesar’s cases, Summers v. Department of Justice, could be the first to resolve the issue. Though Summers is on appeal to the D.C. Circuit, the OPEN Government Act had not yet passed when the district court heard the case. Still, there is a chance that the Court of Appeals might be able to dodge the retroactivity question by ruling that the requester — who is seeking materials for his biography of Richard Nixon — meets the standard for attorney’s fees under a caveat in OCAW v. Dept. of Energy.

Appeals in the Davis, Judicial Watch and NYC Apparel casescould also reach the court first. First Amendment advocates are also keeping an eye on Wildlands CPR v. U.S. Forest Service, in which a federal district court judge in Montana found the amendments retroactive. The government’s appeal is set to hit the U.S. Court of Appeals for the Tenth Circuit soon.

Lesar says he expects the D.C. Circuit will resolve the retroactivity issue sometime this year. Davis, who hopes to make those remaining FBI tapes public, is keeping his fingers crossed.

OGIS finds a home at Archives—to the relief of FOIA advocates

The second provision of the OPEN Government Act to cause a stir is the Office of Government Information Services (OGIS), a component of the amendments intended to create an independent office responsible for mediating FOIA disputes between agencies and requesters. The ombudsman position was created to provide an alternative to time-consuming and costly lawsuits.

Sens. Leahy and Cornyn, in writing the OPEN Government Act, expressly authorized funding for OGIS through the National Archives and Records Administration, an independent office headed by the country’s archivist — a lifetime-appointed position.

However, in his budget proposal in February, President Bush proposed moving the functions of OGIS from the National Archives to the Department of Justice, the agency responsible for defending against FOIA actions. First amendment advocates considered the proposal a clear conflict of interest and a blow to the efficacy of an ombudsman.

“Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of American’s FOIA requests,” Leahy stated in a floor speech.

In June, the Senate Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies, a panel on which Leahy serves, rejected the White House budget proposal to transfer OGIS to operate within the Department of Justice. And on July 10, the Senate Appropriations Committee agreed to provide $1 million to fund the OGIS in the National Archives and Records Administration.

“Despite efforts of this administration to close the curtains on FOIA, the Senate has shown a commitment to the importance of our premiere open government law,” Leahy said in a statement.