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FOIA requester wins attorney fees vs. CIA

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Settlement enough for FOIA requester to win attorney fees

An author who largely prevailed in an FOIA lawsuit against the CIA over documents about the Kennedy assassination is eligible for attorney fees, a federal appellate court ruled.

July 20, 2006 · A federal court order enforcing an agreement by the CIA to release documents under the Freedom of Information Act is enough of a victory to make the requester eligible for attorney fees, the U.S. Court of Appeals in Washington, D.C., ruled last week.

A three-judge panel ruled July 11 that a 2001 U.S. District Court order memorializing the CIA's agreement to release documents about the assassination of President John F. Kennedy to a Virginia historian means the author "substantially prevailed," meeting the standard for attorney fee eligibility under FOIA.

Court of Appeals Judge Karen LeCraft Henderson wrote for the unanimous three-judge panel that the settlement in favor of access for requester William Davy Jr., met what is known as the Buckhannon standard after a 2001 U.S. Supreme Court ruling.

"First the order changed the legal relationship between [the plaintiff] and the defendant, and, second, Davy was awarded some relief on the merits of his claim," wrote Henderson, partially quoting the high court ruling. Although the appellate court determined Davy to be "eligible" for fees based on the court-ordered agreement, the case was returned to the district court to determine whether Davy was entitled to attorney fees.

Dan Alcorn, the attorney who represented Davy, said although the current framework for recovering attorney fees is less than adequate, the Court of Appeals decision provides some relief.

"I think there's been a feeling that fees are almost impossible in FOIA cases," Alcorn said. "Although the case law is not perfect and not what we would like, it's not impossible under existing case law."

The decision also offers some relief from the practice of federal agencies dropping challenges to releasing records at the last minute to avoid paying FOIA requesters' attorney fees.

Davy's 1993 FOIA request sought certain CIA documents related to the Kennedy assassination.

Seven years after his request, Davy sued the agency. Two years after filing suit, despite its earlier claim that the records were so security-sensitive it could "neither confirm nor deny" their existence, the CIA "voluntarily" released a batch of more than 100 documents without waiting for U.S. District Judge Richard Leon of Washington to rule on the merits of the case.

Although the CIA won a motion officially dismissing the case, Davy later asked the court to order the agency to pay the $27,000 in attorney fees he incurred during the legal battle to get the records. In February 2005, Judge Leon denied Davy's motion without explanation.

In reversing Leon, the appeals court relied heavily on Buckhannon Board and Care Home Inc. v. West Virginia Department of Health and Human Resources, in which the Supreme Court ruled 5-4 that a plaintiff must receive at least some relief in a court ruling on the merits of a case or in a court-sanctioned settlement agreement to meet the "prevailing party" standard required under FOIA to receive attorney fees.

First Amendment advocates support legislation that would change the law to award plaintiff attorney fees when an FOIA lawsuit leads to government compliance with the legal obligation to provide information.

In ruling for Davy, the court cited its 2005 decision in Edmonds v. FBI, marking the second time that a court-endorsed decree providing substantial relief -- though short of courtroom victory -- was sufficient to meet the standard for attorney fees.

"It's moving in the direction we would like to see," Alcorn said.

(Davy v. Central Intelligence Agency; Requester's counsel: Daniel S. Alcorn, Vienna, Va.) --


Edited by Don Roberdeau
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