RICHARD J. LEON, District Judge.
Plaintiff, Jefferson Morley, moves for an award of attorney's fees and costs against the Central Intelligence Agency ("CIA" or "Agency") under 5 U.S.C. § 552(a)(4)(E) of
The facts of Morley's case are detailed in prior opinions of this Court and our Court of Appeals. See generally Morley v. CIA, 699 F.Supp.2d 244 (D.D.C.2010) ("Morley II"); Morley v. CIA, 453 F.Supp.2d 137 (D.D.C.2006) ("Morley I"), aff'd in part, rev'd in part, 508 F.3d 1108 (D.C.Cir.2007) ("Morley"). Accordingly, I will summarize only those facts that directly bear on Morley's motion for attorney's fees.
Plaintiff is a journalist, author, and news editor who has written about President John F. Kennedy's assassination. See Morley, 508 F.3d at 1113. On July 4, 2003, he requested from the CIA, through FOIA, "all records pertaining to CIA operations officer George Efythron Joannides... including, but not limited to" seventeen specific categories of records. Compl. Ex. 1 ("Morley Letter") 1-3 [Dkt. # 1-1]. Morley's interest in Joannides stems from his belief that the former CIA officer was "uniquely well-positioned to observe and report" on the Kennedy assassination. Morley Letter 3.
The CIA initially responded to Morley's request by directing him to records relating to the Kennedy assassination that the CIA had transferred to the National Archives and Records Administration ("NARA"). See Morley, 508 F.3d at 1113. After further review, the CIA reconsidered its position and, in several productions in 2004 and 2005, sent Morley 3 complete documents, 2 documents in segregable form, and 113 redacted documents. See id. at 1114.
Based on these document searches and productions, this Court granted summary judgment in the Agency's favor. See Morley I, 453 F.Supp.2d at 144-57. On review, our Circuit Court affirmed in part and reversed in part. See Morley, 508 F.3d at 1113, 1129. Specifically, the Court of Appeals remanded the case for the CIA to: (1) search its operational files, which it had not done previously, id. at 1116-19; (2) search the records it transferred to NARA, id. at 1119-20; (3) supplement its explanation regarding certain monthly reports, which Morley believes should have been filed by Joannides, id. at 1120-21; (4) provide additional details describing the scope of its search, id. at 1121-22; (5) explain to this Court's satisfaction why the withheld information was not segregable, id. at 1123; (6) substantiate its Glomar response, id. at 1126; and (7) provide additional justification for withholding documents under FOIA exemptions 2, 5, and 6, id. at 1124-28. Simultaneously, our Circuit affirmed this Court's decision concerning the CIA's use of FOIA to respond to Morley's document request, the adequacy of the CIA's Vaughn index, and the CIA's withholding of material under FOIA Exemptions 1, 3, and 7(3). Id. at 1129.
In response to our Circuit's decision, the CIA in 2008 conducted additional searches and produced additional material to Morley. In particular, on April 28, 2008, the CIA released 113 responsive records from the files it previously transferred to NARA, and on August 6, 2008, another 293 responsive records from the CIA's files. Pl.'s Mem. P & A Supp. Pl.'s Mot. Award
Under FOIA, a 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). To obtain this award, a plaintiff must make two separate showings: (1) he is eligible for an award of attorney's fees and (2) he is entitled to that award. Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1495 (D.C.Cir. 1984).
First, to be eligible for attorney's fees, a plaintiff must have "substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). Next, and equally necessary, the plaintiff must also show the court that he is entitled to such an award. Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092, 1093 (D.C.Cir.1992), superseded by statute on other grounds, OPEN Government Act of 2007, Pub.L. No. 110-175, 121 Stat. 2524. In determining whether a FOIA litigant is entitled to fees, a court must consider the following four, nonexhaustive factors: "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) whether the government has a reasonable basis for withholding the requested information." Cotton v. Heyman, 63 F.3d 1115, 1117 (D.C.Cir. 1995) (internal citation omitted). But, there is no "presumption in favor of awarding attorney fees to prevailing FOIA litigants," and "the legislative history of section 552(a)(4)(E) evinces a clear congressional intent to leave the courts' broad discretion when considering a request for attorney fees." Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 713-14 (D.C.Cir.1977); see also Tax Analysts, 965 F.2d at 1094 ("The sifting of those criteria over the facts of a case is a matter of district court discretion ....") (internal citation omitted).
Morley contends that he is both eligible and entitled to an award of attorney's fees under FOIA. Pl.'s Mem. 8, 10. The CIA does not contest whether Morley is eligible to receive attorney's fees; instead, the Agency argues that Morley has failed to show that he is entitled to attorney's fees under any of the four factors. Opp'n 2. For the following reasons, I agree with the CIA and conclude that Morley is not entitled to an award of attorney's fees in this case.
The public benefit factor "speaks for an award of attorney's fees 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 (quoting Fenster v. Brown, 617 F.2d 740, 744 (D.C.Cir.1979)). Relevant considerations for this factor include the disclosure's "likely degree of dissemination and the public impact that can be expected," Peter S. Herrick's Customs & Int'l Trade Newsletter v. U.S. Customs & Border Protection, No. 04-377, 2006 WL 3060012 at *4 (D.D.C. Oct. 26, 2006) (internal citation and quotations omitted), and the extent to which the information is already publically available, Tax Analysts, 965 F.2d at 1094. As such, the public benefit should be measured by the "the specific documents at issue in the case at hand." Cotton, 63 F.3d at 1120.
Morley contends that "[a]s an author and journalist, [he] is in the favored class of requesters who `ordinarily' would be awarded attorney's fees." Pl.'s Mem. 11. And, indeed, Morley requested documents regarding Joannides to gain information about the Kennedy assassination. Id. at 11-12; see also Morley Letter 3. While the Kennedy assassination is surely a matter of public interest, see Weisberg, 543 F.2d at 311, this litigation has yielded little, if any, public benefit — certainly an insufficient amount to support an award of attorney's fees.
Here, in response to our Circuit's decision, the CIA in 2008 conducted additional searches and produced to Morley 113 documents from the set of documents previously transferred to NARA ("Kennedy-assassination documents") and 293 documents from the CIA's operational files related to Joannides's personnel records. Pl.'s Mem. 5-6; Opp'n 5-6. Morley appears to claim that the public benefit primarily derives from the Kennedy-assassination documents. See Pl.'s Reply Def.'s Opp'n ("Reply") 4-6, 8-9[Dkt. # 112-1]; Pl.'s Resp. Def.'s Surreply ("Pl.'s Resp.") 2-5 [Dkt. # 119].
Instead, the Kennedy-assassination documents obtained by Morley through this FOIA litigation are identical to the documents which were previously released under
Morley tries to circumvent this problem by arguing that "NARA normally requires the requester to do the search and imposes exorbitant copying charges." Pl.'s Reply 8. But, Morley's using FOIA to sidestep these copying costs and to compel the CIA to search these records did not exactly further the public benefit. See Chesapeake Bay Found., Inc. v. Dep't of Agric., 108 F.3d 375, 377 (D.C.Cir.1997) ("[T]hat the Foundation did not have to pay for postage under the [court's order] is hardly a significant public benefit. Nor is the establishment of a legal right to information a public benefit...."). Indeed, prior to filing this case, "the public had the benefit of access to all or most of this information...." Tax Analysts, 965 F.2d at 1094 (internal citation and quotation omitted). Accordingly, considering that Morley has already himself benefitted by avoiding the copying costs, this Court does not view a further award of attorney's fees as appropriate in this case.
Even if the majority of documents Morley received had not been previously public, Morley's claims about the supposed public benefit of the documents produced in this litigation are unconvincing as based on nothing more than his own conclusory opinions and factually inaccurate statements. For instance, Morley claims that his "suit prompted the CIA to acknowledge for the first time that Joannides was acting in an official and deceptive capacity" in his role with the House of Representatives Select Committee on Assassinations. Pl.'s Reply 6 (quoting Morley Decl. ¶ 4(b),
Morley claims that this Court should award attorney's fees based on documents withheld by the CIA. See Pl.'s Reply 7 ("[T]he lawsuit has made it clear that the CIA retains a significant body of JFK assassination-related records that it has not reviewed and released as mandated by the JFK Records Act."); Pl.'s Resp. 4-5. But those documents were properly withheld under FOIA, see Morley II, 699 F.Supp.2d at 252-58, and therefore, his argument must fail. Even so, the CIA has stated that most of these records are completely unrelated to the Kennedy assassination. See Nelson Decl. ¶ 55.
The second and third factors, the plaintiff's commercial benefit and the nature of plaintiff's interest, "are closely related and often considered together." Tax Analysts, 965 F.2d at 1095. As our Circuit Court instructed in Davy v. CIA, 550 F.3d 1155 (D.C.Cir.2008), these factors are intended to assess whether a plaintiff has "sufficient private incentive to seek disclosure" recognizing that "many FOIA plaintiffs do not have the financial resources or economic incentives to pursue their requests through expensive litigation." Id. at 1158, 1160 (internal citations and quotations omitted). But, "when a litigant seeks disclosure for a commercial benefit or out of personal motives, an award of attorney's fees is generally inappropriate." Tax Analysts, 965 F.2d at 1095. (internal citations and quotations omitted).
Morley asserts that these factors favor a fee award because (1) any commercial benefit he received should not disqualify him from an award because he "belongs to the category of requesters favored to receive both fee waivers and attorney's fees" and (2) his interest "fits in the scholarly-journalistic category." Pl.'s Mem. 13-17. Morley admits that he received "minimal"
Rather, as the CIA correctly points out, Morley had an interest in obtaining the NARA records "from the CIA at little or no charge under FOIA" to avoid expending his own time and money to obtain the documents from NARA. Opp'n 16; cf. Pl.'s Reply 8 ("NARA normally requires the requester to do the search and imposes exorbitant copying charges."). I find, therefore, that these two factors indicate that Morley has a sufficient private interest in pursuing these records without attorney's fees. See 550 F.3d at 1160.
Because the CIA has advanced reasonable legal positions, this Court concludes that the fourth factor also weighs against an award of attorney's fees. The final factor considers whether the government had a reasonable or colorable basis for withholding documents and whether the government was recalcitrant or obdurate in opposing a valid claim. Id. at 1162. Although none of the factors is solely dispositive, the "failure to satisfy the fourth element ... may foreclose a claim for attorney's fees or costs." Maydak v. U.S. Dep't of Justice, 579 F.Supp.2d 105, 108-09 (D.D.C.2008) (internal citations and quotations omitted).
Morley contends that the CIA engaged in "dilatory tactics" in its initial response to Morley's FOIA request and then continued with "delaying tactics" by asserting its Glomar response and litigating whether its operational records were exempt from FOIA. Pl.'s Mem. 16-17; Pl.'s Reply 15-18. I disagree.
The CIA has not only relied on reasonable legal interpretations but also acted reasonably throughout this case. First, in response to Morley's FOIA request letter seeking materials to "shed new light on the assassination of President Kennedy," Morley Letter 3, the CIA directed Morley to the logical repository of such records — NARA. Second, the CIA was certainly reasonable in its assertion of a Glomar response concerning Joannides's participation in covert operations: after the CIA expanded its explanation for making the Glomar response at our Circuit Court's instruction, this Court found that explanation adequate. Morley II, 699 F.Supp.2d at 257-58. Further, the CIA had a reasonable legal basis for initially contesting Morley's request to search its operational files. Although our Circuit eventually ruled against the CIA on this point, the court noted that the CIA relied on the "only opinion by a circuit court of appeals" to address the relevant FOIA exemption under the CIA Act, 50 U.S.C. § 431. Morley, 508 F.3d at 1118. Finally, there is no indication in the record that the CIA has engaged in any recalcitrant or obdurate behavior. Cf. Davy, 550 F.3d at 1163 (holding that fourth factor weighed against agency where agency took more than one year to process documents and provided no legal basis in response to a second FOIA request). In sum, this factor also weighs strongly in favor of the CIA.
For all these reasons, the Court concludes that the plaintiff is not entitled to
