United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2015 Decided January 21, 2016
No. 14-5230
JEFFERSON MORLEY,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cv-02545)
James H. Lesar argued the cause and filed the briefs for
appellant.
Benton Peterson, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Vincent H.
Cohen, Jr., Acting U.S. Attorney, and R. Craig Lawrence,
Assistant U.S. Attorney.
Before: SRINIVASAN, Circuit Judge, and WILLIAMS and
GINSBURG, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
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WILLIAMS, Senior Circuit Judge: Jefferson Morley
appeals for the second time from the district court’s denial of
his request for attorney’s fees and costs under the Freedom of
Information Act (“FOIA”). Morley argues that he is entitled
to a fee award under the familiar four-factor standard that
looks to “(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.” Davy
v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008) (citations
omitted). Because the district court improperly analyzed the
public-benefit factor by assessing the public value of the
information received rather than “the potential public value of
the information sought,” id. (citations omitted), we must
vacate and remand again.
* * *
Morley is a journalist and news editor who has written
about the assassination of President John F. Kennedy. In
2003 he submitted a FOIA request to the Central Intelligence
Agency for all records related to CIA officer George E.
Joannides. Morley believed that information on Joannides
could shed new light on President Kennedy’s assassination
because Joannides had served as the CIA case officer for
Directorio Revolucionario Estudantil (“DRE”), one of the
Cuba-focused organizations with which Lee Harvey Oswald
was in contact in the months before the assassination.
Receiving only a communication from the CIA that records on
President Kennedy’s assassination had been sent to the
National Archives and Records Administration, Morley filed
suit. The ensuing litigation spanned over a decade and led to
the production of several hundred documents, a subset of
which are in fact publicly available in the Archives. Morley
contends that some of the documents turned over—a couple of
travel records and a photograph and citation relating to a
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career medal once received by Joannides—shed some light on
President Kennedy’s assassination, but the value of these
documents is at best unclear.
In 2010 Morley sought attorney’s fees as a substantially
prevailing party. See 5 U.S.C. § 552(a)(4)(E)(i). The district
court denied the fee request. Morley v. CIA, 828 F. Supp. 2d
257, 265-66 (D.D.C. 2011). While acknowledging that “the
Kennedy assassination is surely a matter of public interest,”
id. at 262 (citation omitted), the district court concluded that
the public-benefit factor weighed strongly against a fee award
because the actual documents produced by the CIA provided
little if any public benefit, see id. at 262-64. After analyzing
the remaining three factors, the district court concluded that
Morley was not entitled to fees. Id. at 264-66.
This court vacated and remanded because the district
court had failed to consider the analysis of the public-benefit
factor in Davy, a decision that also concerned a FOIA request
for documents related to President Kennedy’s assassination.
Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013).
On remand, the district court again denied fees,
explaining that Davy “d[id] not alter [its] original conclusion
that ‘this litigation has yielded little, if any, public benefit—
certainly an insufficient amount to support an award of
attorney’s fees.’” Morley v. CIA, 59 F. Supp. 3d 151, 155
(D.D.C. 2014) (emphasis in original) (quoting Morley, 828 F.
Supp. 2d at 262). While noting the Davy court’s conclusion
that the requested information served a public benefit because
of its alleged nexus to the Kennedy assassination, the district
court rejected the idea that Davy had “create[d] a category of
records that automatically satisfy the [public-benefit] factor
based on a plaintiff’s claims of a relationship to [President
Kennedy’s] assassination.” Id. (As developed below, we
agree with the point that a plaintiff’s “claims” of a
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relationship to the assassination aren’t enough to establish a
public benefit.) Analyzing the particular documents that
Morley received, the court concluded that “this litigation has
benefited the public only slightly, if at all.” Id. at 158. The
released documents either were previously publicly available,
id. at 156, or “shed very little, if any, light on Joannides’s
involvement in the events surrounding the Kennedy
assassination,” id. at 158.
* * *
The district court erred in concluding that the merits case
had not yielded a public benefit. We agree that the released
documents appear to reveal little, if anything, about President
Kennedy’s assassination. Morley contends that the released
travel records indicate that Joannides may have been in New
Orleans at the time that Warren Commission investigators
were interviewing DRE members about their contacts with
Oswald, and that the career medal reflects the CIA’s approval
of Joannides’s conduct as its case officer for the DRE and as
liaison between the CIA and the House Select Committee on
Assassinations. The plausibility and value of these inferences
are at best questionable, but are ultimately of little relevance
as Davy required the court to assess “the potential public
value of the information sought,” Davy, 550 F.3d at 1159
(citations omitted), not the public value of the information
received. The purpose of the fee provision is “to remove the
incentive for administrative resistance 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.” Id. at 1158 (quoting
Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711
(D.C. Cir. 1977)). “[S]hifting to the plaintiff the risk that the
disclosures will be unilluminating” would defeat this purpose
because “[f]ew people . . . would stake their financial
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resources on litigation when they can know nothing about the
documents or their contents prior to their release.” Id. at 1162
n.3; see also id. at 1164-65 (Tatel, J., concurring).
To be sure, Davy notes that assessing the public benefit
also requires considering “the effect of the litigation,” and
while the court’s analysis focuses on “[t]he information Davy
requested,” there is some discussion of the actual documents
released. Id. at 1159 (majority opinion). But “the effect of
the litigation” inquiry is properly understood as asking simply
whether the litigation has caused the release of requested
documents, without which the requester cannot be said to
have substantially prevailed. See id. (suggesting that
assessing “the value of the litigation” “presents a variation on”
the question whether the plaintiff has “substantially
prevail[ed]”). Lest there be any uncertainty, we clarify that
the public-benefit factor requires an ex ante assessment of the
potential public value of the information requested, with little
or no regard to whether any documents supplied prove to
advance the public interest. We can imagine a rare case
where the research harvest seemed to vindicate an otherwise
quite implausible request. But if it’s plausible ex ante that a
request has a decent chance of yielding a public benefit, the
public-benefit analysis ends there.
Of course a bare allegation that a request bears a nexus to
a matter of public concern does not automatically mean that a
public benefit is present. To have “potential public value,”
Davy, 550 F.3d at 1159, the request must have at least a
modest probability of generating useful new information
about a matter of public concern. The higher this probability
and the more valuable the new information that could be
generated, the more potential public value a request has. The
nature of the subject that the request seeks to illuminate is
obviously important. Where that subject is the Kennedy
assassinationan event with few rivals in national trauma and
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in the array of passionately held conflicting
explanationsshowing potential public value is relatively
easy. This of course does not mean that a requester’s mere
claim of a relationship to the assassination ipso facto satisfies
the public interest criterion. Cf. Morley, 59 F. Supp. 3d at
155.
Morley’s request had potential public value. He has
proffered—and the CIA has not disputed—that Joannides
served as the CIA case officer for a Cuban group, the DRE,
with whose officers Oswald was in contact prior to the
assassination. Travel records showing a very close match
between Joannides’s and Oswald’s times in New Orleans
might, for example, have (marginally) supported one of the
hypotheses swirling around the assassination. In addition, this
court has previously determined that Morley’s request sought
information “central” to an intelligence committee’s inquiry
into the performance of the CIA and other federal agencies in
investigating the assassination. Morley v. CIA, 508 F.3d
1108, 1118 (D.C. Cir. 2007). Under these circumstances,
there was at least a modest probability that Morley’s request
would generate information relevant to the assassination or
later investigations.
The district court suggested that Morley is not entitled to
fees incurred in connection with documents that were
available to him (and the public generally) in the Archives.
Morley, 59 F. Supp. 3d at 156. The district court’s basic point
was correct: whether documents are already in the public
domain is significant because it undermines any claim that the
requester’s use of FOIA had provided public access to the
documents. See Tax Analysts v. U.S. Dep’t of Justice, 965
F.2d 1092, 1094-95 (D.C. Cir. 1992). But, unlike the
requester in Tax Analysts, who sought publicly available tax
decisions, Morley had no reason to believe that all records
pertaining to Joannides would be available. Moreover, at oral
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argument Morley’s counsel claimed that extracting documents
of this sort from the Archives is a laborious and unreliable
process—and that some documents in the Archives cannot be
electronically located because of missing record identification
forms, which record information about each document for
input into an electronic database. The Archives website does
not clearly confirm or contradict this claim, but does indicate
that “[n]ot all the material found in the Collection is indexed
in the database.” JFK Assassination Records Collection
Reference System, https://www.archives.gov/research/jfk/
search.html#reference (last visited Jan. 4, 2016).
Before denying any fees on the ground that some of the
documents were available in the Archives, the district court
should consider (1) whether fees incurred in connection with
such documents are segregable and, if so, (2) whether the
difficulties recited above nonetheless militate against denial of
fees for such documents.
Following the prior remand on the fees issue, the district
court declined to reevaluate any factors other than public
benefit, or to rebalance the factors, despite this court’s
suggestion in Davy that the first three factors are all addressed
to the distinction “between requesters who seek documents for
public informational purposes and those who seek documents
for private advantage.” Davy, 550 F.3d at 1160. On remand,
the district court should consider the remaining factors and the
overall balance afresh.
* * *
The judgment of the district court is vacated and the case
is
Remanded.