Morley v. Cent. Intelligence Agency
894 F.3d 389
| D.C. Cir. | 2018Background
- Jefferson Morley, a journalist, filed a FOIA request with the CIA in 2003 for records concerning CIA officer George Joannides related to the JFK assassination; after lengthy litigation the CIA produced 524 responsive records (113 of which had been transferred to NARA).
- Morley sought attorney’s fees under FOIA § 552(a)(4)(E)(i) after prevailing on his request; the district court denied fees and this Court reviews that denial for abuse of discretion under the circuit’s four-factor test.
- The D.C. Circuit’s four-factor framework considers: (1) public benefit from disclosure, (2) commercial benefit to requester, (3) requester’s interest in the records, and (4) reasonableness of the agency’s withholding.
- On remand the district court found factors 1–3 favored Morley only slightly (or were a close call) but held factor 4—reasonableness of the CIA’s initial withholding—strongly favored the CIA, and denied fees.
- The majority affirms, applying deferential abuse-of-discretion review and concluding the district court reasonably found the CIA had colorable legal bases (JFK Act reliance, existing caselaw, Glomar, Exemption 2 as then-understood, and backlog/delay explanations) for its responses.
- Judge Henderson dissents, arguing the district court and majority misapplied precedent (especially Tax Analysts and Davy), that factors 1–3 should clearly favor Morley, and that the CIA’s referral to NARA and other positions were unreasonable such that fees should have been awarded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Morley is entitled to FOIA attorney’s fees under 5 U.S.C. § 552(a)(4)(E)(i) | Morley argued he substantially prevailed and the four-factor test favors awarding fees (public value of JFK records, requester’s journalistic interest, minimal commercial disqualifier, and CIA’s unreasonable withholding). | CIA argued that although Morley prevailed, the district court may deny fees because the four-factor balancing permits denial where the agency had reasonable bases for its actions. | Affirmed denial of fees: appellate court held district court’s balancing was within its discretion; factor four (reasonableness of withholding) heavily favored CIA and outweighed modest plaintiff-favoring factors. |
| Whether the CIA’s initial referral to NARA was unreasonable under FOIA/Tax Analysts | Morley: referral improperly avoided agency’s FOIA duty because Tax Analysts bars pointing requesters to other public sources in lieu of agency production. | CIA: reliance on the JFK Act and Tax Analysts’ alternative-access line of cases made referral a colorable, reasonable position given centralized record transfer to NARA. | Held: district court reasonably concluded CIA’s referral was at least a colorable/legal basis and thus reasonable for factor four purposes. |
| Whether the CIA’s reliance on case law/exemptions (operational-files statute, Glomar, Exemption 2) was unreasonable | Morley: CIA’s legal positions were incorrect and cumulatively show recalcitrance; reliance on outdated Exemption 2 and an insufficient Glomar were unreasonable. | CIA: withheld under then-controlling precedent (circuit or other appellate decisions) and updated positions when law changed; those original positions were colorable and reasonable. | Held: district court reasonably found CIA’s legal positions were colorable; factor four favors the agency. |
| Standard of review for FOIA fee awards | Morley: earlier remands require careful adherence to precedent (Davy) and the district court should have awarded fees given past rulings. | CIA: appellate court should apply deferential abuse-of-discretion review to district court’s factual and balancing determinations. | Held: appellate court applies abuse-of-discretion review; because the district court’s analysis and balancing fell within the zone of reasonableness, the denial of fees is affirmed. |
Key Cases Cited
- Davy v. Central Intelligence Agency, 550 F.3d 1155 (D.C. Cir.) (articulating the four-factor framework and instructing fee awards in similar JFK-assassination FOIA context)
- Department of Justice v. Tax Analysts, 492 U.S. 136 (U.S. 1989) (an agency cannot avoid FOIA duties by pointing requesters to other public sources; but recognizes alternative-access concepts)
- Morley v. Central Intelligence Agency, 810 F.3d 841 (D.C. Cir. 2016) (prior panel holding Morley’s request had potential public value and remanding for fresh four-factor analysis)
- Milner v. Department of the Navy, 562 U.S. 562 (U.S. 2011) (Supreme Court decision clarifying scope of FOIA Exemption 2)
- Koon v. United States, 518 U.S. 81 (U.S. 1996) (abuse-of-discretion review is constrained by legal error; district courts must follow precedent and mandates)