United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2008 Decided December 19, 2008
No. 07-5200
WILLIAM A. DAVY, JR.,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02134)
James H. Lesar argued the cause and filed the briefs for
appellant.
Meredith Fuchs, Lucy A. Dalglish, and Gregg P. Leslie
were on the brief for amicus curiae Reporters Committee for
Freedom of the Press in support of appellant.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Jeffrey A. Taylor, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Charlotte A. Abel, Assistant U.S. Attorney, entered an
appearance.
2
Before: ROGERS and TATEL, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
Concurring opinion by Circuit Judge TATEL.
Dissenting opinion by Senior Circuit Judge RANDOLPH.
ROGERS, Circuit Judge: This is the second time William
Davy has appealed the denial of his request for an award of
attorney’s fees and costs under the Freedom of Information Act
(“FOIA”). Davy first appealed the district court’s finding that
he was ineligible, and this court reversed, holding that he was
eligible as a prevailing party and remanding the case for the
district court to determine whether Davy was entitled to fees
upon applying a familiar four-factor test. Davy v. CIA (“Davy
I”), 456 F.3d 162 (D.C. Cir. 2006). On remand the district court
again denied fees. This court must reverse and remand again.
Because the district court’s findings on some factors are
unsupported by the record, and the record indicates that Davy is
the quintessential requestor of government information
envisioned by FOIA, he is entitled to an award of fees and costs,
and upon remand the district court shall enter an appropriate
order.
I.
The details of Davy’s two FOIA requests are set forth in
Davy I. Suffice it to say, in 1999, six years after Davy, acting
pro se, filed his first FOIA request, the agency responded by
refusing disclosure, stating that it could neither confirm nor deny
the existence of responsive records due to national security
reasons, citing FOIA exemptions (1) and (3). 456 F.3d at 163.
Davy obtained a lawyer but no relief by administrative appeal
3
and filed suit against the agency. The district court dismissed
his complaint with leave to amend on the ground that it was
based on a FOIA request made in 1993 and so was untimely.
Davy then filed a second FOIA request in November 2000,
renewing his initial request and seeking additional documents.
In December 2000, having received no response from the
agency, Davy amended his complaint to focus on his second
FOIA request. On May 4, 2001, the district court entered an
order adopting the parties’ agreement on a schedule for the
agency to produce documents pursuant to Davy’s second FOIA
request. Thereafter the agency produced on schedule some
documents but not others and moved for summary judgment.
Davy also moved for summary judgment. After the agency filed
a superseding motion for summary judgment, the district court
granted the agency’s motion.
Davy thereafter timely filed a motion for attorney’s fees
under 5 U.S.C. § 552(a)(4)(E),1 which the district court denied.
On appeal, this court held that Davy had substantially prevailed
and was therefore eligible for fees and remanded the case so that
the district court could, in the first instance, apply a four-factor
test for determining entitlement. Davy I, 456 F.3d at 166-67.
Davy now appeals the district court’s finding on remand that he
was not entitled to an award of fees. Our review of the district
court’s application of the four-factor test is for abuse of
discretion. Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092,
1094 (D.C. Cir. 1992); see generally Kickapoo Tribe v. Babbitt,
43 F.3d 1491, 1497 (D.C. Cir. 1995).
1
Under FOIA, “[t]he court may assess against the United
States reasonable attorney fees and other litigation costs reasonably
incurred in any case under this section in which the complainant has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i).
4
II.
This court, drawing on the Senate and House Committee
reports for FOIA and its amendments,2 explained long ago that
the provision for attorney’s fees “was not enacted to provide a
reward for any litigant who successfully forces the government
to disclose information it wished to withhold,” but instead “had
a more limited purpose — to remove the incentive for
administrative resistence to disclosure requests based not on the
merits of exemption claims, but on the knowledge that many
FOIA plaintiffs do not have the financial resources or economic
incentives to pursue their requests through expensive litigation.”
Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711
(D.C. Cir. 1977) (citing S. REP. NO. 93-854, at 17). The court
embraced the view that a distinction is to be drawn between the
plaintiff who seeks to advance his private commercial interests
and thus needs no incentive to file suit, and a newsman who
seeks information to be used in a publication or the public
interest group seeking information to further a project
benefitting the general public. Id. at 712-13 (quoting S. REP.
NO. 93-854, at 19). The court observed in conclusion that:
The touchstone of a court’s discretionary decision
under section 552(a)(4)(E) must be whether an award
of attorney fees is necessary to implement the FOIA.
A grudging application of this provision, which would
dissuade those who have been denied information from
invoking their right to judicial review, would be clearly
contrary to congressional intent.
2
See S. REP. NO. 93-854, at 17-20 (1974), reprinted in H.
COMM. ON GOV’T OPERATIONS, S. COMM. ON JUDICIARY, 94TH CONG.,
FREEDOM OF INFORMATION ACT AND AMENDMENTS OF 1974, SOURCE
BOOK II 151, 169-72 (1975).
5
Id. at 715; see also LaSalle Extension Univ. v. FTC, 627 F.2d
481, 484 (D.C. Cir. 1980).
With this understanding, the court has directed the district
court to consider at least four criteria in determining whether a
substantially prevailing FOIA litigant is entitled to attorney’s
fees: (1) the public benefit derived from the case; (2) the
commercial benefit to the plaintiff; (3) the nature of the
plaintiff’s interest in the records; and (4) the reasonableness of
the agency’s withholding of the requested documents. Tax
Analysts, 965 F.2d at 1093-94; see also S. REP. NO. 93-854 at
19. No one factor is dispositive, although the court will not
assess fees when the agency has demonstrated that it had a
lawful right to withhold disclosure. See Chesapeake Bay Found.
v. USDA (“Chesapeake I”), 11 F.3d 211, 216 (D.C. Cir. 1993),
abrogated in part on other grounds by Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Resources, 532
U.S. 598, 601-02 (2001).
The first factor assesses “the public benefit derived from the
case,” Tax Analysts, 965 F.2d at 1093, and requires
consideration of both the effect of the litigation for which fees
are requested and the potential public value of the information
sought, see Chesapeake Bay Found. v. USDA (“Chesapeake II”),
108 F.3d 375, 377 (D.C. Cir. 1997); Cotton v. Heyman, 63 F.3d
1115, 1120 (D.C. Cir. 1995); Tax Analysts, 965 F.2d at 1093-94.
The district court found that “Davy’s FOIA request and
subsequent litigation were intended to compel disclosure of
information relating to the activities of a government agency
(the CIA) in relation to a significant historical event,” and thus
that this factor favors Davy. There can be little question that
this factor favors Davy.
The information Davy requested — about individuals
allegedly involved in President Kennedy’s assassination —
6
serves a public benefit. See, e.g., Allen v. CIA, 636 F.2d 1287,
1300 (D.C. Cir. 1980), overruled on other grounds by Founding
Church of Scientology v. Smith, 721 F.2d 828, 830 (D.C. Cir.
1983). At least one of the requested documents was not
previously available to the public, and the agency did not
challenge Davy’s description of the released documents as
providing “important new information bearing on the
controversy over former [District Attorney Jim] Garrison’s
contention that the CIA was involved” in the assassination plot.
Davy Decl. ¶ 2. Nothing in the record indicates that the
releases, which occurred only after the May 4, 2001 order of the
district court, were not a fruit of Davy’s litigation; despite
Davy’s second FOIA request, the agency did not turn over any
documents to him until after he filed suit. As this court stated in
Davy I, it was the district court’s disclosure-schedule order that
“provide[d] Davy with the precise relief his request sought.”
456 F.3d at 165.
The agency’s position — that the district court erred by
failing to focus on the value of the litigation — presents a
variation on its position, rejected in Davy I, that Davy did not
“substantially prevail” in his litigation and so was not eligible
for fees. Davy I, 456 F.3d at 166. Because nothing in the record
indicates that Davy would have received the information without
filing suit, the district court’s consideration of the value of the
information sought necessarily entailed consideration of the
value of the litigation that led to the disclosure of that
information. The cases on which the agency relies are
inapposite, involving a pre-litigation offer of release in
Chesapeake II, 108 F.3d at 377, or litigation that produced only
faster disclosure of publicly available information in Tax
Analysts, 965 F.2d at 1094, or establishment of a legal precedent
defining “public interest” in Cotton, 63 F.3d at 1120. The fact
that some of the material turned over to Davy concerns an event
of national importance and is newly released is a key distinction
7
between this case and the litigation at issue in Tax Analysts.
Although the district court’s determination that the first
factor weighed in Davy’s favor was not an abuse of discretion,
we reach a different conclusion regarding its determination of
the other factors. The second and third factors, which are often
considered together, assess whether a plaintiff has “sufficient
private incentive to seek disclosure” without attorney’s fees.
See Tax Analysts, 965 F.2d at 1095. The second factor considers
the commercial benefit to the plaintiff, while the third factor
considers the plaintiff’s interest in the records. Applying these
factors, the district court found that because the requested
documents were used to research a book that was later
published, albeit with “presumably . . . limited commercial
success,” “Davy’s interest in the records was clearly
commercial.” These findings are based on inappropriate
considerations and clearly erroneous findings of fact.
First, the mere intention to publish a book does not
necessarily mean that the nature of the plaintiff’s interest is
“purely commercial.” See S. REP. No. 93-854, at 19. Surely
every journalist or scholar may hope to earn a living plying his
or her trade, but that alone cannot be sufficient to preclude an
award of attorney’s fees under FOIA. “If newspapers and
television news shows had to show the absence of commercial
interests before they could win attorney’s fees in FOIA cases,
very few, if any, would ever prevail.” Tax Analysts, 965 F.2d at
1096. Yet their activities often aim to ferret out and make
public worthwhile, previously unknown government information
— precisely the activity that FOIA’s fees provision seeks to
promote. Furthermore, a conclusion that using information
obtained under FOIA in connection with research for purposes
of writing a book necessarily makes fees unavailable is
inconsistent with the distinction that underlies this court’s
analysis of the relevant factors. Cf. Nationwide, 559 F.2d at 713
8
(discussing Goldstein v. Levi, 415 F. Supp. 303, 305 (D.D.C.
1976)).
Essentially, the first three factors assist a court in
distinguishing between requesters who seek documents for
public informational purposes and those who seek documents
for private advantage. The former engage in the kind of
endeavor for which a public subsidy makes some sense, and
they typically need the fee incentive to pursue litigation; the
latter cannot deserve a subsidy as they benefit only themselves
and typically need no incentive to litigate. Thus, on the one
hand, the court has reversed an award of attorney’s fees where
the plaintiff was an attorney requesting information in
preparation of private litigation for a client, Cotton, 63 F.3d at
1120, and upheld a denial of fees where a nonprofit organization
was reprinting federal tax decisions in a newsletter sent to
paying subscribers, Tax Analysts, 965 F.2d at 1093. Although
Tax Analysts had a news interest, it simply sought “efficient,
easy access” to information that was already public, id. at 1095,
in order to make it available to its subscribers sooner, and the
court concluded that such a subscriber organization did “not
need the attorney’s fees incentive” to pursue litigation, id. at
1096. On the other hand, the court has long recognized that
“news interests,” regardless of private incentive, generally
“should not be considered commercial interests” for purposes of
the second factor, Tax Analysts, 965 F.2d at 1096; Fenster v.
Brown, 617 F.2d 740, 742 n.4 (D.C. Cir. 1979) (quoting S. REP.
NO. 93-854, at 19), and that “a court would generally award fees
if the complainant’s interest in the information sought was
scholarly or journalistic or public-interest oriented, [unless] . . .
his interest was of a frivolous or purely commercial nature,”
Fenster, 617 F.2d at 742 n.4 (quoting S. REP. NO. 93-854, at 19);
Tax Analysts, 965 F.2d at 1096.
Second, in finding that Davy’s interest was “purely
9
commercial, the district court relied exclusively on the fact that
Davy is the author of Let Justice Be Done, a book about the
investigation by New Orleans District Attorney Jim Garrison
and the trial of Clay Shaw for conspiracy to assassinate
President Kennedy. Yet this book was published in 1999, prior
to the release of documents by the agency. This alone suffices
to show that the district court abused its discretion. But even if
the district court had been correct about the book, such scholarly
interests are not “clearly commercial” under this circuit’s
precedents. Davy’s FOIA requests for information related to the
agency’s QKENCHANT and ZRCliff projects, which were
based on his interest in the agency’s alleged involvement in the
assassination, Davy I, 456 F.3d at 163, reflect more of a
scholarly than a disqualifying commercial interest. The record
indicates not only that Davy has also published magazine
articles on the assassination but that some of the information
released to him under FOIA had not previously been made
public. There is no suggestion in the record that his requests
were frivolous. In fact, Davy’s unchallenged declaration makes
clear the substantive value of the released documents and the
agency has not meaningfully argued otherwise even on appeal.
Additionally, Davy states in his sworn declarations that his
“primary motivation was to obtain records which would shed
light on [the Garrison] investigation, . . . and present an accurate
historical record regarding it,” and that his book made a
“miniscule” amount of money. Davy Supp. Decl. ¶ 4. Contrary
to the district court’s speculation and the agency’s suggestion
that because his book, out of print since 2004, was for sale on
Amazon.com he must be commercially profiting, Davy stated
that he received no money from such second-hand sales. Davy
Supp. Decl. ¶¶ 4-5. These are not the circumstances indicative
of private, self-interested motivation or commercial pecuniary
benefit that the court has recognized “will be sufficient to insure
the vindication of the rights given in the FOIA.” Fenster, 617
10
F.2d at 743 n.4 (quoting S. REP. NO. 93-854, at 19).
To the extent that Davy has a scholarly interest in
publishing publicly valuable information in a book, his interest
is at most “quasi-commercial,” Campbell v. U.S. Dep’t of
Justice, 164 F.3d 20, 36 (D.C. Cir. 1998). This alone is not
disqualifying as nothing in the record would suggest that his
private commercial interest outweighs his scholarly interest,
much less the public value in providing him an incentive to
ferret out and publish this information. See, e.g., Aronson v.
U.S. Dep’t of Hous. & Urban Dev., 866 F.2d 1, 3 (1st Cir.
1989). As the court observed in interpreting the FOIA provision
providing for waiver or reduction of copying fees, 5 U.S.C.
§ 552(a)(4)(A)(iii), “Congress did not intend for scholars (or
journalists and public interest groups) to forego compensation
when acting within the scope of their professional roles.”
Campbell, 164 F.3d at 35-36; see also Nat’l Treas. Employees
Union v. Griffin, 811 F.2d 644, 649 (D.C. Cir. 1987).
Furthermore, Davy sought the information not for its
republication value standing alone as in Tax Analysts, but in
relation to a larger work addressing an historical issue of
national importance.
Davy was thus much like a journalist who “gathers
information of potential interest to a segment of the public, uses
[his] editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience,” Tax Analysts,
965 F.2d at 1095, and as such is among those whom Congress
intended to be favorably treated under FOIA’s fee provision, id.
at 1096. He is at least the quintessential “average person,”
Cuneo v. Rumsfeld, 553 F.2d 1360, 1363-64 (D.C. Cir. 1977),
abrogated on other grounds by Kay v. Ehrler, 499 U.S. 432, 438
(1991), requesting information under FOIA about what the
government was up to that he intends to share with the public as
part of his scholarship or “news” gathering role rather than
11
merely to promote his private commercial interests. For the
reasons discussed and because the record provides no basis to
doubt that his purpose in filing the FOIA request and pursuing
litigation was to increase the public fund of knowledge about a
matter of public concern, the district court abused its discretion
in determinating that the second and third factors weighed
against Davy.3
3
Our dissenting colleague inappropriately shifts the focus
from the request’s topic and purpose to the specific content of the
released documents. The dissent ignores both Davy’s four-page sworn
description of the newly released information and its significance to
scholars in understanding events relating to the assassination of
President Kennedy, and the fact that the government never challenged
his description of the value of this information. Even on appeal the
agency never takes issue with the point-by-point substantive analysis
Davy presented, and instead asserts only that to be entitled to fees
Davy must show that “his current work [is] likely to have an impact
comparable to a widely circulated journal” or “significantly advances
the public understanding of an issue important to ‘making vital
political decisions,’ per Fenster,” Appellee’s Br. at 13. Putting aside
the fact that the court does not typically rehabilitate such an “asserted
but unanalyzed argument,” Duncan’s Point Lot Owners Ass’n v.
FERC, 522 F.3d 371, 377 (D.C. Cir. 2008), the agency points to no
authority nor rationale that conditions FOIA fee awards on circulation
data. Indeed, such a requirement would be counterproductive, both
because many requesters would be unable to provide publication data
in a timely filed fee request, and because shifting to the plaintiff the
risk that the disclosures will be unilluminating defeats the purpose of
the fee provision. Few people in Davy’s situation, for example, would
stake their financial resources on litigation when they can know
nothing about the documents or their contents prior to their release.
It would also be inconsistent with congressional intent to disqualify
plaintiffs who obtain information that, while arguably not of
immediate public interest, nevertheless enables further research
ultimately of great value and interest, such as here the public
understanding of a Presidential assassination. Understandably the
12
The fourth factor considers whether the agency’s opposition
to disclosure “had a reasonable basis in law,” Tax Analysts, 965
F.2d at 1096, and whether the agency “had not been recalcitrant
in its opposition to a valid claim or otherwise engaged in
obdurate behavior,” LaSalle Extension, 627 F.2d at 486; see
Fenster, 617 F.2d at 744. “If the Government’s position is
correct as a matter of law, that will be dispositive. If the
Government’s position is founded on a colorable basis in law,
that will be weighed along with other relevant considerations in
the entitlement calculus.” Chesapeake I, 11 F.3d at 216; see
Cotton, 63 F.3d at 1117; Nationwide, 559 F.2d at 712 n.34. The
district court found that “there is no basis to conclude that the
[a]gency unreasonably withheld these requested documents.”
But this analysis mistakenly shifts the burden to the requester.
The question is not whether Davy has affirmatively shown that
the agency was unreasonable, but rather whether the agency has
shown that it had any colorable or reasonable basis for not
disclosing the material until after Davy filed suit.
The agency did not reach an agreement to disclose the
requested documents until March 2001, after Davy filed his
lawsuit and four months after he filed his second FOIA request.
Davy observes on appeal that the agreement coincided with the
filing date for meet-and-confer statements under Local Rule 16
of the district court, and that it took more than a year for the
government does not suggest that Davy’s motivation for requesting
the documents is suspect, as it seems unlikely that he would, as the
dissent speculates, allow the information he has described as new and
significant to “gather[] dust in some corner of his closet,” Dis. Op. at
2, after pursuing its release for six years. Moreover, the dissent
appears to ignore, id., what long standing precedent makes clear, see
Nationwide, 559 F.2d at 715, quoted supra — any fee burden to be
borne by the public is a result of the government’s conduct, not the
plaintiff’s.
13
agency to process and release a moderate quantity of documents.
That aside, although the agency invoked FOIA Exemptions 1
and 3 when it finally responded to Davy’s first FOIA request, it
provided no such legal basis in response to Davy’s second FOIA
request. Failing to explain the basis for deferring its response to
his second request until after he filed suit is exactly the kind of
behavior the fee provision was enacted to combat. For the
agency to receive the benefit of the fourth factor it must present
at least a “colorable basis in law” for its failure to respond to
Davy’s second request, and it has not done so. See Nationwide,
559 F.2d at 712 n.34. It is not enough to say that “once the
[a]gency faced a justiciable FOIA claim, it offered no
resistance,” Appellee’s Br. at 19, because the agency did not
disclose the documents until after Davy had pursued litigation,
including filing a cross-motion for summary judgment and
negotiating a release schedule. Even on appeal the agency does
not suggest that the “information disclosed after initial
resistance was nonetheless exempt from the FOIA,” or that “it
had a reasonable basis in law for resisting disclosure.”
Nationwide, 559 F.2d at 712 n.34. If the government could
defeat an award of fees by citing a lack of resistance after the
requester files a lawsuit to obtain requested documents, then it
could force plaintiffs to bear the costs of litigation. Absent
evidence that the agency had a reasonable basis for failing to
respond to Davy’s second request, the district court abused its
discretion in determining that the fourth factor weighed in the
agency’s favor.
Accordingly, because the record reflects that he is the type
of requester Congress contemplated when it sought “to lower the
‘often . . . insurmountable barriers presented by court costs and
attorney fees to the average person requesting information under
the FOIA,’” Tax Analysts, 965 F.2d at 1095 (quoting Cuneo, 553
F.2d at 1363-64), and because no factor weighs in the agency’s
favor, a balancing of the factors can only support the conclusion
14
that Davy is entitled to an award of attorney’s fees.
Accordingly, we reverse and remand the case only for the
district court to enter an appropriate order awarding fees and
costs as to all matters on which Davy prevailed.
TATEL, Circuit Judge, concurring: Agreeing completely
with Judge Rogers’s application of our long-standing test for
FOIA fee eligibility, I join her opinion in full. I write only to
clarify a single point: that William Davy presents a
paradigmatic case for the award of attorney’s fees even if we
step back from the particulars of the test the dissent so
maligns and focus instead on FOIA’s purposes. While
recognizing the test as binding precedent, the dissent
nonetheless casts aspersions on Davy’s case and subjects it to
newly minted standards inconsistent with the very purpose of
FOIA’s fees provision. Indeed, because the barriers the
dissent would erect appear insuperable, I read it not as a
dissent from this Court’s opinion, but from Congress’s
decision to provide fees to prevailing FOIA requesters at all.
Begin with the first factor, which asks whether the FOIA
requester pursued the litigation in the public interest. Maj.
Op. 5. The purpose of this inquiry is obvious: Congress
meant to incentivize the pursuit of public informational
interests, not the mining of government records for private
advantage. E.g., Tax Analysts v. U.S. Dep’t of Justice, 965
F.2d 1092, 1095 (D.C. Cir. 1992). But the dissent would
ignore the purpose of the document request and ensuing
litigation, focusing instead on whether the particular records
released would be interesting to the public or would instead
be greeted with “a yawn.” Dis. Op. 2. As the facts of this
very case demonstrate, however, assessing the content of the
specific documents disclosed rather than the reasons they
were requested makes little sense. Before suing, requesters in
Davy’s position have no idea what documents responsive to
their FOIA requests might contain because the agency has
told them nothing—here, it never even gave Davy a Vaughn
index. In fact, Davy knew only that his request implicated
matters of such enormous national concern that the CIA at
first expressly refused to either confirm or deny the existence
of responsive records. So Davy went to court seeking more
information, exactly as Congress intended. Indeed, Congress
2
created a fees incentive precisely so that people in Davy’s
situation would sue where, as here, the agency digs in. Maj.
Op. 4; see also Nationwide Bldg. Maint., Inc. v. Sampson, 559
F.2d 704, 715 (D.C. Cir. 1977) (“A grudging application of
this [fees] provision, which would dissuade those who have
been denied information from invoking their right to judicial
review, would be clearly contrary to congressional intent.”).
The dissent would force requesters to bear the risk that the
revealed documents might ultimately be boring, but since no
one in Davy’s position can know before suing what the
requested documents say or even whether they exist, the
dissent’s rule would in fact chill all FOIA suits, preventing
the discovery of important and unimportant content alike. So
long as the information sought was of a type the public might
want to know, we should consider the objective underlying
this element of our test met. Davy’s suit sought records
regarding the assassination of an American president; we need
know nothing more to find that the first factor favors him.
The dissent disagrees with this view of both the law and
the facts. As to the law, the dissent argues that a FOIA
request’s purpose is irrelevant, Dis. Op. 3, citing our standard
in Cotton v. Heyman, 63 F.3d 1115 (D.C. Cir. 1995), which
asks whether a request “is likely to add to the fund of
information that citizens may use in making vital political
choices,” id. at 1120 (internal quotation marks omitted). This
argument founders on Cotton itself, which in fact applied its
standard by looking to the purpose behind the FOIA request:
In this case, no evidence exists that the release
of the two non-exempt documents will
contribute to the public’s ability to make vital
political choices. Plaintiff does not even argue
this point. Rather, she sought these documents
3
for the sole purpose of facilitating her
employment discrimination suit.
63 F.3d at 1120 (emphasis added). As to the facts, the dissent
disagrees with my representation of Davy’s request as one
seeking records related to the assassination of President
Kennedy. Dis. Op. 3. Of course, this isn’t my representation,
it’s the district court’s, see Davy v. CIA, 496 F. Supp. 2d 36,
38 (D.D.C. 2007) (“Davy’s FOIA request and subsequent
litigation were intended to compel disclosure of information
relating to the activities of a government agency (the CIA) in
relation to a significant historical event . . . .”), and the dissent
never so much as mentions the deference we owe that finding.
But even so, Davy’s request clearly did relate to the Kennedy
assassination; as the dissent itself observes, “[m]uch of what
Davy obtained was already in the public domain, released
under the John F. Kennedy Assassination Records Collection
Act.” Dis. Op. 1 (emphasis added).
This brings us to the second and third factors, which
inquire into the nature of the requester’s interest in the records
and whether the requester can be expected to benefit
commercially from obtaining the documents. Maj. Op. 6-7.
The reason for these inquiries is obvious as well: Congress
did not intend to subsidize those who stand to profit from
pursuing litigation and so need no subsidy. See, e.g., Cuneo
v. Rumsfeld, 553 F.2d 1360, 1367 (D.C. Cir. 1977) (“If the
potential for private commercial benefit was sufficient
incentive to encourage [plaintiff] to pursue his FOIA claim,
the policy objectives of section 552(a)(4)(E) would be met
and it would not be improper for the trial court to deny his
request for attorney fees.”), abrogated on other grounds by
Kay v. Ehrler, 499 U.S. 432, 438 (1991). The dissent’s
dismissive aside about whether Davy should qualify as a
“journalist” under these elements of the test is thus a red
4
herring. Nothing in the record suggests that Davy’s persistent
interest in the Kennedy assassination was ever likely to earn
him any pecuniary gain. To the contrary, uncontroverted
record evidence demonstrates that absent the promise of fees,
Davy lacked both the incentive and the ability to pursue his
request through litigation. These factors thus favor him
regardless of his scholarly or journalistic credentials.
That said, it is worth pausing to consider why we ask
whether a requester pursues information in a journalistic
capacity. Scholars, authors, and journalists straddle the
incentive inquiry framed by the first three factors of the
entitlement test. Always searching for information that the
public will want to consume, journalists must surely be
thought of as pursuing records in the public interest. At the
same time, because they have a strong profit motive in that
pursuit, they need fees less than most. Echoing the judgment
of Congress as expressed in the legislative history, we have
long resolved the tension by considering scholarly or
journalistic interests to be public rather than private. See Maj.
Op. 7, 9-10 (collecting authorities). The dissent faults that
judgment, but in reality, it cannot itself decide which side of
the debate to join. In one breath it decries awarding fees to
large media organizations that profit from obtaining and
reselling information, Dis. Op. 1 & n.1; in the next it faults
Davy for his inability to prove that he had already revealed
the information he obtained to the public, hypothesizing that
the records went straight from some government file cabinet
to Davy’s closet, id. at 2. Of course, the only kinds of FOIA
requesters who can prove that they almost immediately
circulate the information they obtain belong to “the group that
is in the business of profiting from the information when it
winds up in their newspapers and magazines and TV shows.”
Id. at 1 n.1. So in the dissent’s world no one can obtain fees:
journalists circulate their information too successfully and so
5
are excluded, while independent scholars such as Davy fail to
circulate their information quickly or widely enough.
This Catch-22 is completely at odds with the intent of
Congress’s fees provision. Scholars like Davy often lack
resources and need more time to research their work. No
single FOIA request is likely to produce the smoking gun that
independently verifies their complicated hypothesis or grabs
the public’s attention. That the requester wisely waits to
evaluate and synthesize released records before broadcasting
information to the public in no way undermines the fact that
the records were sought in the public interest by an individual
without adequate ability or incentive to sue.
A brief word on the entitlement test’s final element,
which serves a different purpose from the first three. Asking
whether the government had a reasonable basis for
withholding documents, this fourth factor is intended to
disincentivize requesters from complaining about reasonable
withholdings while incentivizing the government to promptly
turn over—before litigation is required—any documents that
it ought not withhold. That purpose will be ill-served if the
government can prevail on this factor by saying nothing and
forcing the requester to sue, only then to offer “no resistance,”
Appellant’s Br. 19, as it did here. As we explained in
Nationwide, 559 F.2d at 710, “[i]f the government could
avoid liability for fees merely by conceding the cases before
final judgment, the impact of the fee provision would be
greatly reduced.” Were that so, “[t]he government would
remain free to assert boilerplate defenses, and private parties
who served the public interest by enforcing the Act’s
mandates would be deprived of compensation for the
undertaking.” Id. That is why we consider plaintiffs to have
substantially prevailed if they win a stipulated release, and
that is why the government’s argument is essentially
6
foreclosed by Davy’s victory in his first appeal. See Davy v.
CIA, 456 F.3d 162 (D.C. Cir. 2006).
In short, our four-factor test is a heuristic, a somewhat
crude mechanism for testing whether fees in a particular case
are consistent with the purposes for which Congress
subsidized FOIA litigation. We hardly need such a divining
rod for Davy, whose entitlement to fees is clear as day. The
dissent accuses us of rendering the test “more senseless,” Dis.
Op. 1, yet it is the dissent’s requirements that would divorce
the test from the ends Congress intended FOIA fees to serve.
RANDOLPH, Senior Circuit Judge, dissenting: Precedent
forces the majority to apply a longstanding test for determining
whether to award attorney’s fees. It is time to recognize that this
test is a legal relic. It is derived not from the statute but from
statements in committee reports, it is inconsistent with now-
settled FOIA law that the identity of the requester is irrelevant,
see, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149
(1975); Sterling Drug, Inc. v. FTC, 450 F.2d 698, 705 (D.C. Cir.
1971), and it draws an irrational line between news
organizations and other commercial and non-commercial
businesses and individuals.1 Although stare decisis commands
us to use the test, it does not command us to render it even more
senseless than it already is.
The majority holds that Davy should be treated as a
journalist and is entitled to attorney’s fees because he provided
a public benefit by gathering valuable information through this
lawsuit. This is unsupported and unsupportable. Davy wrote a
book a few years before the government complied with his
FOIA request. I do not know if that makes him a “journalist.”
I cannot see why that should matter in any event. Davy
provided nothing to show that the information he sought and
received was valuable or important. The majority is incorrect in
stating that the government conceded otherwise. See Gov’t Br.
at 11. Much of what Davy obtained was already in the public
domain, released under the John F. Kennedy Assassination
Records Collection Act of 1992, Pub. L. No. 102-526, 106 Stat.
3443. No one can say why the relatively few newly released
documents Davy obtained benefitted the public in any way.
Davy asserts that new information came to light, but this
consisted of the names of people who had obtained a clearance
for classified material or the code names of already-known
1
If there is any group that does not need an extra incentive –
in the form of attorney’s fees – to bring FOIA cases, it is the group
that is in the business of profiting from the information when it winds
up in their newspapers and magazines and TV shows.
2
people and enterprises. See Davy Decl. ¶¶ 1–3. This is the kind
of data the populace would greet with a yawn. It surely does not
amount to “information that citizens may use in making vital
political choices.” Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C.
Cir. 1995). Davy may think the public profited from his efforts,
but he has never said why.
Even if his documents amounted to anything, Davy
failed to show that “the public” – whoever that might be – was
somehow better off as a result of his FOIA request. Davy
obtained the documents in 2001, two years after his book was
published. He submitted no evidence that he showed the
documents to anyone else (other than his lawyer and the court)
or that he posted them online or that he published anything
about them or that he plans to do so in the future. For all we
know the documents are gathering dust in the corner of his
closet. Tax Analysts stressed that the very small circulation of
a publication was a reason for denying fees, see Tax Analysts v.
Dep't of Justice, 965 F.2d 1092, 1094 (D.C. Cir. 1992), and
several of our cases have rejected fee requests when the
requested information was not widely disseminated to the
public, see Cotton, 63 F.3d at 1120; Fenster v. Brown, 617 F.2d
740, 744 (D.C. Cir. 1979).
In short, Davy did not even come close to satisfying his
burden of showing that his lawsuit produced something of value.
See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Anderson
v. HHS, 80 F.3d 1500, 1504 (10th Cir. 1994). For that reason the
public should not have to foot the bill for his litigation costs.
I will end with a few words about the concurring opinion.
Judge Tatel says that what matters in terms of public benefit are
“the reasons [the documents] were requested.” Op. of Judge
Tatel 1. He caps this off by telling us that Davy “sought records
regarding the assassination of an American president.” Id. at 2.
3
Judge Tatel’s first proposition misstates the law; his second
misstates the facts. As I have already said, the law of the circuit
is clear: the public benefit criterion favors awarding fees only
when “the complainant’s victory is likely to add to the fund of
information that citizens may use in making vital political
choices.” Cotton, 63 F.3d at 1120. Nothing in that formulation
turns on the requester’s motives in seeking the documents.
Rather, a court must “evaluate the specific documents at issue in
the case at hand,” id., and determine whether the public actually
benefitted from the FOIA litigation. Chesapeake Bay Found.,
Inc. v. Dep’t of Agric., 108 F.3d 375, 377 (D.C. Cir. 1997). As
to the facts, Davy did not seek records relating to the
assassination of President Kennedy, as Judge Tatel represents.
Davy requested files relating to a program involving background
checks and a CIA-operated airline. There is nothing to connect
any newly released information to the Kennedy assassination.
Maybe Davy imagined some connection. But it had not occurred
to me that the taxpayers ought to be subsidizing someone who is
pursuing a figment.