Court denies fee award in JFK assassination records suit

A U.S. District Court in Washington, D.C. ruled that a journalist who sued the CIA under the federal Freedom of Information Act to release certain John F. Kennedy assassination records was not entitled to attorney’s fees.

In his ruling last week, District Judge Richard Leon denied Jefferson Morley attorney’s fees following eight years of FOIA litigation, finding that the suit had been pursued in Morley’s own interests rather than the public’s, and that the CIA had acted reasonably in withholding some of the records. The court rejected Morley’s arguments that the litigation had exposed new facts important to the public’s understanding of the assassination, and that the CIA had engaged in “dilatory” and “delaying” tactics in withholding the records.

Morley, an author and the Washington editor of Salon.com, filed the FOIA request in 2003, seeking records related to a CIA operations officer for a book he is writing about “what the assassination looked like through the eyes of the CIA.”

The CIA released some of the records to Morley, and withheld some under various FOIA exemptions. For other records, the agency issued Glomar responses – refusals to confirm or deny the existence of certain records. The agency also directed Morley to the National Archives and Records Administration for some of the records, to which it had transferred its Kennedy assassination records pursuant to the President John F. Kennedy Assassination Records Act of 1992. The Act requires the government to release all records related to the assassination, allowing the postponement of their release only where certain statutory exceptions apply, such as for records whose publication would pose harm to intelligence operations.

Morley sued for the records withheld by the CIA, as well as those it had transferred to the National Archives. The court noted that in seeking the records through FOIA, Morley could – as an author and journalist eligible for fee waivers – “sidestep” the cost of copying records and require the CIA to search for the records, whereas seeking them from the National Archives would require him to search for the records himself and pay copying fees.

After protracted litigation, Morley obtained some additional records from the CIA, including some that the agency had transferred to the National Archives. Thereafter, he sought attorney’s fees.

The court stated that Morley would have to be both eligible and entitled to attorney’s fees. He would be eligible for the fees if he had substantially prevailed in the litigation; however, the court declined to rule on that issue, as it had already found that Morley was not entitled to such fees. In assessing whether he was entitled to attorney’s fees, the court considered four factors: the public benefit from the litigation, Morley’s commercial benefit, the nature of Morley’s interest in the records, and the reasonableness of the CIA’s withholding of the records.

First, the court ruled that Morley’s litigation had not sufficiently benefitted the public, as the records released were the same as those previously available to the public at the National Archives and therefore “did not exactly further the public benefit.”

The court rejected as “unconvincing” Morley’s claim that some of the documents he received were not previously public and therefore conferred a benefit on the public, opining that he “overstate[d]” the importance of new facts – such as information about the operation officer’s travels and receipt of a medal – that had surfaced through the litigation.

Next, the court ruled that Morley had a personal and financial interest in seeking the records from the CIA – factors weighing against an award of attorney’s fees – as he had received some compensation for writing news articles on the issue and had pursued litigation “to avoid expending his own time and money to obtain the documents.”

Last, the CIA had not acted unreasonably in withholding records or directing Morley to the National Archives for some records – their “logical repository,” ruled the court.

Jim Lesar, president of the Assassination Archives and Research Center in Washington, D.C. and Morley’s attorney, said he plans to appeal the ruling.

“I think the chances are very good that the decision will be reversed,” said Lesar. “The public interest in this subject is of very great interest, and contrary to the court’s ruling, Morley obtained approximately 600 documents as a result of the lawsuit that would have not been obtained had he not filed suit.”

“We obtained a bunch of material that was never released through [the National Archives] and is highly significant,” said Morley. “Judge Leon showed hostility to my case from the beginning.”

Bill Miller, public information officer for the U.S. Attorney’s Office for the District of Columbia, said the office has no comment on the ruling.