FOIA requester loses attorney's fees case

A federal judge ruled Tuesday that the attorney’s fees provision in the 2007 Freedom of Information Act amendments is not retroactive.

The amendments changed the standard for when a FOIA requester who obtained his or her records during the course of a lawsuit could receive attorney’s fees from the government.

But the statute was not clear on whether the new standard would apply to cases that were pending when the change was made. Tuesday’s ruling by U.S. District Judge Henry Kennedy, Jr. in Washington is the first to confront the issue.

A magistrate’s recommendation in the case, Davis v. Department of Justice, has been pending for almost one year before Kennedy weighed in. Many open-government advocates speculated he would adopt the magistrate’s recommendation, but in fact his opinion disagreed with it.

The Justice Department argued the attorney’s fees provision could not apply retroactively because for it to do so would impinge on the government’s sovereign immunity – the legal principle that protects the government from lawsuits for damages.

While Congress had waived the government’s sovereign immunity in future cases under the changes to FOIA, there was no clear intent for the waiver to apply retroactively, according to Kennedy. Thus, attorney’s fees could not be awarded, he concluded.