293 F. Supp. 3d 17
D.C. Cir.2017Background
- Plaintiff David T. Hardy submitted FOIA requests to DOJ OIG and ATF seeking interview records, survey data, and work papers related to a 2007 OIG report on the NFRTR.
- OIG initially withheld all responsive records under Exemption 5 (deliberative process); ATF produced documents during the litigation that the plaintiff regarded as compliant.
- The court entered a schedule requiring disclosure of nonexempt material; OIG produced highly redacted pages and a Vaughn index before the deadline and later produced additional documents after summary-judgment briefing.
- Cross-motions for summary judgment were granted in part and denied in part: the court ordered release of three OIG documents (two "Survey Results" and one "Final Survey Data"), upheld some withholdings, and denied judgment on others for insufficient justification.
- Parties dismissed the case except for Hardy’s fee claim. Hardy sought FOIA attorneys’ fees and costs as a prevailing party; defendants contested eligibility and the reasonableness/amount of fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eligibility for fees from OIG | Litigation caused OIG to change position and produce documents; thus Hardy "substantially prevailed." | OIG contends production resulted from court scheduling and review, but acknowledges court-ordered relief in part. | Eligible for fees from OIG (court-ordered relief + partial success). |
| Eligibility for fees from ATF | Hardy argues ATF produced only after complaint, so he prevailed. | ATF says production resulted from administrative backlog and delayed processing, not litigation causation. | Not eligible for fees from ATF (no causation; delay due to backlog). |
| Entitlement to fees (public vs. private benefit, and reasonableness of withholding) | Hardy: disclosures have public value; his interest is public/scholarly; OIG unreasonably withheld some documents. | OIG: many withholdings were proper; released material duplicates public NFRTR. | Entitled to fees from OIG: public benefit, plaintiff's noncommercial interest, and OIG lacked a colorable basis for withholding certain documents. |
| Reasonable amount of fees | Hardy submitted contemporaneous billing; seeks full lodestar for merits and fees-on-fees. | Defendants challenge hours as excessive, noncompensable (ATF-related, post-order review), and disproportionate to limited success. | Award reduced: deduct ATF-only hours and post-order review; overall merits hours cut 50% for partial success; fees-on-fees reduced proportionally. Total award to Hardy from OIG = $20,095.95 (includes $436 costs). |
Key Cases Cited
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn index requirement for withheld records)
- Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011) (discussing FOIA fee eligibility and the Open Government Act restoration of catalyst theory for FOIA)
- Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363 (D.C. Cir. 2006) (fee eligibility and requirements for substantial prevailing)
- McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707 (D.C. Cir. 2014) (multi-factor entitlement inquiry for FOIA fee awards)
- Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476 (D.C. Cir. 1984) (causation requirement under catalyst theory)
- Davy v. C.I.A., 456 F.3d 162 (D.C. Cir. 2006) (standards for "substantially prevailed" and entitlement factors)
- Davy v. C.I.A., 550 F.3d 1155 (D.C. Cir. 2008) (government's legal correctness can be dispositive in entitlement analysis)
- Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092 (D.C. Cir. 1992) (factors guiding entitlement: public benefit, commercial benefit, nature of interest, reasonableness of withholding)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (principles for awarding partial fee awards where success is limited)
- Fox v. Vice, 563 U.S. 826 (2011) ("rough justice" principle in fee calculations)