dissenting:
I dissent from that part of the decision and opinion that denies attorney fees. The facts of this case more than fulfill the requirements of the Blue1 criteria as I construe the facts and the law.
In Lovell I plaintiff requested a copy of his eyeglass prescription from the Bureau of Prisons in April of 1977. The doctor at the prison refused to furnish the prescription. The government’s brief at page 3 states the following:
Appellant then appealed to the BOP regional office (R. 10), which denied the request because inmate health records had been exempted by the Attorney General (R. 10-11). See 28 C.F.R. 16.97(a)(6). Appellant’s further appeal to the BOP national office was inexplicably referred back to the regional office (R. 13). Appellant questioned the referral (R. 14); he later made two inquires to the regional office, the last in November 1977 (R. 15, 16), but apparently heard nothing further.
Appellant was told nothing, and he filed suit seeking the prescription in March, 1978. In April, 1978, the Government furnished the prescription.
The Government at no time gave any explanation of why the prescription was not disclosed.2 In furnishing the prescription *435and filing its answer to the complaint the Government stated it was doing so pursuant to guidelines established by the Attorney General. It is obvious that the lawsuit brought forth the document rather than any change in guidelines as I shall try to demonstrate. See 28 C.F.R. 16.97.3 The prescription was not exempt from disclosure as can be seen from reference to Regulation 16.97 as set forth in the footnote and particularly those portions emphasized. Further, the claim by the Government that the prescription was released in April, 1978, pursuant to recent changes in guidelines established by the Attorney General fails because the Attorney General’s letter quoted in Footnote 4 of the majority opinion was written on May 5, 1977. Since the Bureau of Prisons is part of the Department of Justice one would not think that it would take the Bureau so long to react to the Attorney General’s letter trying “to impress upon all levels of government the requirements, and the spirit of the Freedom of Information Act.”
Consequently, it is my opinion that there was no basis for the Government’s withholding the document requested by plaintiff, the lawsuit was the catalyst which brought forth the document, and the fourth criterion of Blue is fulfilled and is alone enough to support an award of attorney’s fees.
Concerning the first Blue standard, benefits to the public deriving from the case, this judge sees considerable benefit to the public in awarding attorney fees in this type of case. Congress passed the law. The agencies are creátures of the United States Government and should obey the laws passed by the very government creating them. Every small step in the direction of forcing governmental agencies to comply with the law is a step forward for the public. If enough suits are filed and enough attorney fees are awarded,4 perhaps the agencies will undertake the practice required of citizens-obedience to the laws. Denial of attorney fees discourages lawsuits against the Government and encourages the agencies to ignore citizens’ requests.
In Blue our court, referring to the Senate Conference Report, said the following:
In the second and third criteria for attorneys’ fee awards, “the commercial benefit to the complainant and the nature of his interest in the case,” the Senate Report showed a preference for public interest groups, indigents and disinterest*436ed scholars over private commercial enterprises’ efforts for disclosure. The reason relates to assuring judicial review over agency decisions against disclosure. Both houses of Congress had heard witnesses who pointed out that without attorneys’ fees litigation costs prevented motive, and often pecuniary benefit to the complainant will be sufficient to insure the vindication of rights given in the FOIA.” Id. at 19.
From S.Rep.No.854, 93d Cong., 2d Sess. 19 (1974)5
If I understand these two criteria correctly, the emphasis is that the need for attorney fees diminishes if the seeker of the documents is going to make a profit or other benefit from the documents or if the nature of his interest in the records is such that it will further the person’s business. If the interest vindicated is purely private one should lean toward awarding attorney fees. If it’s a business interest, one would lean in the other direction. These factors, too, favor an award of fees under the circumstances of this case.
I conclude that there was a benefit to the public in making the Government agency obey the Government's laws, there was no commercial benefit to the plaintiff, the nature of his interest in the record sought was personal and not business or financial, and there was absolutely no legal basis for the Government to refuse to send this man his eyeglass prescription.
The facts of Lovell II are even more egregious. The first document was received four months after suit was filed. One of the two reports sought by plaintiff was not furnished him until the Government filed its brief in this court in connection with this appeal, notwithstanding the fact that the Government in its answer and pleadings continually represented to the court that the Government had furnished all of the documents requested. These representations formed the basis of the trial court’s dismissal of the plaintiff’s case as being moot. It did not become moot, in fact, until after the appeal was filed.
What I have said with respect to Lovell I applies to the first three Blue criteria, public benefit, commercial benefit, and nature of interest in the records sought. I do not concur with the majority with respect to the fourth Blue factor-the basis for the Government’s withholding of the documents. I do not find any suggestion that the parole recommendation report was prepared for the courts and thus comes under the exemption set forth in 5 U.S.C. § 551(1)(B), 5 U.S.C. § 552(b)(7), or 5 U.S.C. § 552a(j),6 as suggested by the majority. *437The document apparently is prepared for the Board of Parole and contains information related to parole of the subject-information the accuracy of which would be of great interest to a person behind bars. There is no claim by the Government that the Department of Justice had designated this document to be exempt from disclosure under 5 U.S.C. 552a(j). The Government in no way demonstrated that either of the documents involved fell within the exemptions, and the burden of proving any exemption is the Government’s to bear.7
(1) maintained by the Central Intelligence Agency; or
I dissent from the court’s holding that attorney fees were not allowable under these facts.8
Differing from my brethren in my evaluation of the facts in light of the Blue criteria, I must answer the question the majority concludes they need not ask', namely, whether a pro se litigant may recover attorney fees against the Government in an action brought pursuant to FOIA and the Privacy Act. This issue has not been decided by the Fifth Circuit. The statute9 provides that “[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.” Can a person acting in his own behalf in the enforcement proceedings against the Government be paid for his time and efforts or is the Government only required to pay when the person had an attorney acting in his behalf?
Several reasons favor the availability of attorney fees for the successful FOIA complainant who also proceeds pro se. First, his time has value and he should be compensated for it. Second, faced with only a pro se complainant, the Government can resist disclosure right up to the point of losing and still escape the penalty of attorney fees. Yet fees are a useful sanction for unfounded resistance to a disclosure request, and we should not distinguish between those making such requests, on the basis of whether or not they have lawyers, in a way that will cause the Government to be more solicitous of the represented than of those who proceed on their own. Third, the availability of attorney fees would encourage those who cannot afford a lawyer to seek relief through the courts without *438their having to convince an attorney to accept a contingent fee arrangement, and they should be encouraged to enforce their rights, not discouraged.
The amendment to permit attorney fees was passed in 1974 and there is yet only a meager body of law on the subject. The principal case is Cuneo v. Rumsfeld10 in which the court was considering whether fees should be paid to a person representing himself. Cuneo was an attorney and had sought documents from the Department of Defense which would benefit him in his practice. Holding that Cuneo was eligible to be paid attorney fees notwithstanding his representation of himself, the court at page 1366 of the opinion said:
The trial court found that since Cuneo and the person appearing on his behalf were partners in the same law firm they were appearing in propria persona and therefore Cuneo did not incur any liability to pay attorney fees. Since he did not incur any liability for attorney fees the court ruled he was not entitled to an award because section 552(a)(4)(E) only authorizes a court to assess “reasonable attorney fees and other litigation costs reasonably incurred ....” 5 U.S.C. § 552(a)(4)(E) (Supp. V 1975). The law is not clear on the question of whether a party appearing on his own behalf, who is also an attorney, is entitled to tax attorney fees as costs. In light of the legislative history of section 552(a)(4)(E), a complainant, who is otherwise eligible under that section for an award of attorney fees, should not be denied those fees simply because he happens to be an attorney. We find the reasoning of Judge Bryant in Holly v. Aeree, 72 F.R.D. 115 (D.D.C. 1976) to be persuasive. Judge Bryant found that the wording of section 552(a)(4)(E) shows that the phrase “reasonably incurred” modifies the phrase “other litigation costs”, and not the larger phrase “reasonable attorney fees and other litigation costs”. Id. at 116. The court reasoned that the use of the word “reasonable” immediately preceding and modifying “attorney fees” precludes the conclusion that another phrase containing the word “reasonable” is used to modify “attorney fees” as well. Id. Judge Bryant therefore held that attorney fees need not be “actually incurred” to be within the ambit of a costs award under section 552(a)(4)(E). Id. We agree.
The policy considerations underlying the FOIA support this conclusion. In enacting section 552(a)(4)(E) Congress sought to lower the barriers facing the average person requesting information. Furthermore, successful FOIA litigants enhance the public interest by bringing the government into compliance with the law. As agents of the national policy of public disclosure it is equitable that they be awarded for their service.
(Footnotes omitted.)
One cannot justifiably assert that an attorney representing himself is more entitled to a fee than a lay person representing himself. The courts are open to everyone— those who can afford to pay an attorney and those who have to do it themselves. The latter are just as entitled to be paid as the former are to be reimbursed.
For these reasons, I DISSENT.
. Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978).
. The statute, 5 U.S.C. 552(a)(6)(A), requires the agency to determine within ten days whether to comply with a disclosure request and to immediately notify the person seeking a docu*435ment the “determination and the reasons therefor.”
. § 16.97 Exemption of Bureau of Prisons Systems-Limited Access.
(a) The following systems of records are exempt from 5 U.S.C. 552a(c)(3) and (4), (d), (e)(2) and (3), (e)(4)(H), (e)(8), (f) and (g):
(6) Inmate Physical and Mental Health record System (JUSTICE/BOP-007).
These exemptions apply only to the extent that information in these systems is subject to exemption pursuant to 5 U.S.C. 552a(j).
(b) Exemptions from the particular subsections are justified for the following reasons:
(3) From subsection (d) because exemption from this subsection is essential to protect internal processes by which Bureau personnel are able to formulate decisions and policies with regard to federal prisoners, to prevent disclosure of information to federal inmates that would jeopardize legitimate correctional interests of security, custody, or rehabilitation, and to permit receipt of relevant information from other federal agencies, state and local law enforcement agencies, and federal and state probation and judicial offices.
(c) Consistent with the legislative purpose of the Privacy Act of 1974 (Pub.L. 93-579) the Bureau of Prisons will initiate a procedure whereby federal inmates in custody may gain access and review their individual prison files maintained at the institution of incarceration. Access to these files will be limited only to the extent that the disclosure of records to the inmate would jeopardize internal decision-making or policy determinations essential to the effective operation of the Bureau of Prisons; to the extent that disclosure of the records to the inmate would jeopardize privacy rights of others, or a legitimate correctional interest of security, custody, or rehabilitation ; and to the extent information is furnished with a legitimate expectation of confidentiality. (Emphasis added.)
. Fees are paid from funds already budgeted to the agency.
. Congress has established in the FOIA a national policy of disclosure of government information, and the committee finds it appropriate and desirable, in order to effectuate that policy, to provide for the assessment of attorneys’ fees against the government where the plaintiff prevails in FOIA litigation. Further, as observed by Senator Thurmond:
We must insure that the average citizen can take advantage of the law to the same extent as the giant corporations with large legal staffs. Often the average citizen has foregone the legal remedies supplied by the Act because he has had neither the financial nor legal resources to pursue litigation when his Administrative remedies have been exhausted. (Hearings, Vol. I at 175.)
Joint Committee Print, Freedom of Information Act and Amendments of 1974, Source Book: Legislative History, Texts and Other Documents (94th Cong. 1st Sess.) at page 99.
5 U.S.C. § 552a(j):
General exemptions. - The head of an agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from any part of this section except subsections (b), (c)(1) and (2), *437(e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) if the system of records is--
(2) maintained by an agency or component thereof which performs as its principa! function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status: (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.
At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempted from a provision of this section.
. 5 U.S.C. § 552(b):
(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;
. 5 U.S.C. 552(a)(4)(B):
In such a case the court shall determine .. . whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. [Emphasis added.]
. Neither Blue, todays’s majority, nor I should be read to intimate that all four of the criteria must be affirmatively present in order to permit an award of attorney fees. Further, we must keep in mind that the Senate Conference report eliminated the criteria from the final version of the bill adopted by conference and in the Conference report explained that, “by eliminating these criteria, the conferees did not intend to make the award of attorney fees automatic or to preclude the courts, in exeicising their discretion as to awarding such fees, to take into consideration such criteria.” Blue, 576 F.2d at 533.
. 5 U.S.C. § 552(a)(4)(E).
. 553 F.2d 1360 (D.C.Cir.1977).