WILLIAM L. STANDISH, District Judge.
Before the Court is the motion of Plaintiff, Amy K. Pohl ("Ms. Pohl"), for an award of attorneys' fees and costs under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. For the reasons set forth below, the motion will be denied.
FOIA was enacted to ensure public access to government information. The purpose of the statute is to permit the public to scrutinize the government's performance of its duties and promote governmental honesty.
By its terms, FOIA applies only to requests for agency records. 5 U.S.C. § 552(a) (3). A federal regulation, however, imposes additional duties on government agencies when the subject of a FOIA request involves federally funded research data in the possession of a grant recipient that was used in developing agency action having the force and effect of law. Specifically, revised Circular A-110 of the Office of Management and Budget ("OMB"), which is codified at 2 C.F.R. § 215.36, states:
2 C.F.R. § 215.36(d) (1).
On October 15, 2008, the Environmental Protection Agency ("EPA") adopted a new National Ambient Air Quality Standard ("NAAQS") for lead, significantly decreasing the amount of lead permitted in the air.
Ms. Pohl is an attorney with the law firm of Jones Day. On August 9, 2007, while the EPA regulatory process for a possible revision of the NAAQS for lead was ongoing, Ms. Pohl, acting as an agent for a client, submitted a FOIA request to the EPA which stated in relevant part:
(Doc. No. 87-1, pp. 15-17).
Ms. Pohl's FOIA request was the first request the EPA received that invoked revised OMB Circular A-110 as a basis for the production of information. (Doc. No. 87-3, p. 3, ¶ 3).
On September 21, 2007, Ms. Pohl received notice from the EPA that her FOIA request had been denied. The notice stated in part:
(Doc. No. 87-3, pp. 15-16).
Ms. Pohl appealed the denial of her FOIA request to the EPA's National FOIA Officer on October 18, 2007. In the appeal letter, Ms. Pohl noted that she had requested data from a study cited in
By letter dated February 14, 2008, Ms. Pohl was notified that her FOIA appeal had been granted in part and denied in part. With respect to Ms. Pohl's assertion that the EPA should conduct a further search for the requested data because the EPA Lead Report established the research data had been analyzed by the EPA, the agency's General Counsel confirmed that a reasonable search for records responsive to the FOIA request had been conducted and no records had been found. Therefore, this ground for the appeal was denied. As to whether the requested data was subject to 2 C.F.R. § 215.36, and, therefore, the EPA had an obligation to request and obtain the data from the recipient of its grant to fund the Lanphear Study, Government counsel stated:
(Doc. No. 87-4, pp. 18-19).
Subsequently, the EPA determined that HHS had been the primary source of federal funding for the Lanphear study.
On June 17, 2008, Pam Wigington, FOIA coordinator for the CDC's Division of Emergency and Environmental Health Services ("EEHS"), received Ms. Pohl's FOIA request. On that date, Ms. Pohl was informed that her FOIA request had been received by the CDC and would be sent to the areas which may have pertinent records.
On June 30, 2008, Ms. Wigington received a copy of revised OMB Circular A-110 on which Ms. Pohl's FOIA request was based. This was the first FOIA request involving revised OMB Circular A-110 that had ever been received by the EEHS, and there was no policy or practice in place regarding the processing of such a request. (DOC. No. 87-1, p. 4, ¶ 10).
On July 9, 2008, Ms. Wigington sent the following email to Samantha Harrykissoon, a colleague at the EEHS Lead Poisoning Prevention Branch, inquiring into the status of Ms. Pohl's FOIA request: "How is it going on this FOIA? . . . We need to find out what CDC paid for and go to the grantee and ask how much it will cost to reproduce those data. (Estimates only at this point, not the data)." (Doc. No. 87-1, p. 2, ¶ 11, p. 31).
On July 21, 2008, Ms. Harrykissoon sent an email to Dr. Lanphear regarding Ms. Pohl's FOIA request.
The next day, Ms. Harrykissoon sent an email to Dr. Lanphear requesting a copy of the co-investigators' confidentiality agreement. Dr. Lanphear responded as follows: "If the legal firm that is requesting the agreement is Jones Day or if they were involved in the RI lead suit, they already have a copy of the agreement. It is also part of the official records of the RI suit." (Doc. No. 87-1, p. 40). Ms. Harrykissoon forwarded Dr. Lanphear's email to Ms. Wigington who responded as follows: "Our FOIA office needs a copy of this. We do not have access to this information." (Doc. No. 87-1, p. 52). Ms. Harrykissoon then sent the following email to Dr. Lanphear: "The copy of the agreement is not for the law firm but for our FOIA office to retain in their records." (Doc. No. 87-1, p. 46). On July 23, 2008, Ms. Harrykisson reported to Ms. Wigington that she had not yet received a response from Dr. Lanphear.
On July 30, 2008, as a result of Dr. Lanphear's failure to respond to her July 22
On August 27, 2008, the CDC's General Counsel sent a letter to Dr. Lanphear in Canada regarding his failure to provide CDC personnel with a copy of the confidentiality agreement among the co-investigators on the Lanphear study. The letter stated:
(Doc. No. 87-1, p. 8, ¶ 25, p. 63).
Dr. Lanphear responded to the letter from the CDC's General Counsel by email on September 29, 2008, stating in part:
(Doc. No. 87-1, p. 67).
Following Dr. Lanphear's response, the CDC's FOIA Officer instructed Ms. Wigington to contact all the researchers involved in the Lanphear Study, including Dr. Lanphear, to obtain their approval for release of the research data. (Doc. No. 87-1, pp. 8-9, ¶ 27).
On October 6, 2008, a CDC FOIA Officer sent an "interim response" to Ms. Pohl's FOIA request, indicating that "[p]rogram staff are negotiating the availability of the data and the cost of providing it with the grantee." (Doc. No. 80-6, p. 6).
On October 24, 2008, Ms. Wigington sent a letter with enclosures to each researcher who participated in the Lanphear Study. Ms. Wigington could not confirm that the letter package was received by the researcher in Mexico. The letter package sent to Dr. Claire Ernhart at the University of South Carolina Beaufort was returned because the doctor could not be located. Professor Peter Baghurst, Head of the Public Health Research Unit at Women's and Children's Hospital in South Australia, responded to Ms. Wigington's letter package by email on November 3, 2008, refusing to "give permission to CDC or any other person to access our data. According to Dr. Baghurst, "the data you were seeking were not obtained using CDC funds and therefore your assertion that our data are subject to OMB Circular A-110 and 45 C.F.R. section 74.36(d) is incorrect." Richard L. Canfield, PhD, Division of Nutritional Sciences at Cornell University, responded to Ms. wigington's letter package on November 10, 2008 as follows: "After speaking with Bruce Lanphear I learned that the data set requested of me . .. has already been provided by him. How shall I proceed?" In response, Ms. Wigington informed Dr. Canfield that Dr. Lanphear had not provided any data, only the co-investigators' agreement not to share the data. She then asked Dr. Canfield for permission for Dr. Lanphear to provide his data to the CDC. Dr. Kim Dietrich faxed correspondence between his attorney and an attorney at Jones Day to Ms. wigington in response to the letter package, which indicated that his data had been provided to Jones Day in response to a subpoena in the Rhode Island litigation. As to the remaining researchers who participated in the Lanphear Study, Ms. Wigington did not receive any response to her letter package. (Doc. No. 87-1, p. 9, ¶¶ 27-31, pp. 72-84, 87-88, 91-92).
On November 13, 2008, Ms. Wigington sent an email to Dr. Lanphear to confirm the reason for his refusal to produce the research data analyzed in the Lanphear Study,
On December 2, 2008, Matthew A. Meyers, Esquire of Jones Day sent a letter to the CDC inquiring into the status of Ms. Pohl's FOIA request. Attorney Meyers noted Ms. Pohl was informed by the EPA on June 30, 2008 that her FOIA request had been transferred to the CDC for processing; it had been five months since Ms. Pohl had received any communication regarding the FOIA request;
Having received no response from Dr. Lanphear to her November 13
(DoC. No. 87-1, p. 10, ¶¶ 33-34, pp. 94, 96, 98).
On December 16, 2008, the CDC notified Ms. Pohl of the denial of her FOIA request under 45 C.F.R. § 74.36(d) (2) (i) (A), which excludes from disclosure "similar information which is protected under law." The CDC noted that the grantee had been contacted regarding the availability of the data; and that the grantee claimed the requested data were excluded from FOIA based on a private agreement among the co-investigators whose research data were pooled and analyzed in the Lanphear Study, an agreement which had been reached at the outset of collaboration. (Doc. No. 87-1, pp. 103 04).
Two days later, the NIH notified Ms. Pohl that NIEHS files had been searched to determine whether the research data responsive to her FOIA request had been produced under an NIEHS grant which satisfied the criteria for processing a FOIA request under revised OMB Circular A-110; the NIEHS grant referenced by Dr. Lanphear in his article regarding the Lanphear Study was a conference grant that supports recipient sponsored and directed international, national or regional meetings, conferences and workshops; the grant awarded by NIEHS had been used to fund travel expenses for Dr. Lanphear to conduct a workshop for the purpose of establishing groundwork for the pooled analysis; and no research data were produced or analyzed at the workshop. As a result, revised OMB Circular A-110 did not apply to the NIEHS grant and the NIH denied Ms. Pohl's FOIA request. (Doc. No. 28-5, pp. 2-3).
On January 9, 2009, Ms. Pohl filed an administrative appeal of the denials of her FOIA request by the CDC and NIH with HHS. (Doc. No. 87-1, pp. 106-24). Thereafter, on February 20, 2009, HHS's General Counsel forwarded the appeal to Dr. Lanphear for comment on the two arguments raised by Ms. Pohl in the appeal,
HHS's regulations require a decision on a FOIA appeal "within 20 working days after the appeal reaches the appropriate review official." See 45 C.F.R. § 5.35(b) (2). With respect to HHS's failure to comply with this regulation in processing Ms. Pohl's appeal, Carol Maloney, FOIA Officer for HHS's Program Support Center ("PSC"), submitted an uncontroverted declaration in support of the Government's opposition to Ms. Pohl's request for attorneys' fees and costs under FOIA. Ms. Maloney's declaration states that her duties include responding to initial FOIA requests for records generated by all components of the PSC, the Office of the Assistant Secretary for Health and the Office of Human Resources; in addition, she is the Administrative Appeals FOIA Officer for all public health agencies within HHS's Public Health Service ("PHS"); she processes administrative appeals for the CDC and NIH; she processed Ms. Pohl's appeal; at the time, her office was experiencing a severe staffing shortage and a large backlog of work; any delay in processing Ms. Pohl's appeal was not unusual given the staffing shortage and backlog; between July 1, 2009 and November 30, 2009, her office processed only 61 of the 145 pending appeals; during the fiscal year 2009 (October 1, 2008 to September 30, 2009), the average time for her office to process a FOIA appeal exceeded 9 months; and although some appeals were processed fairly quickly because the PHS's Operating Divisions and the appellants came to an agreement regarding the issues presented in the appeal, such a resolution was not possible in this case because neither the CDC nor the NIH had the requested data in their possession.
Ms. Pohl filed the present action against the EPA, HHS, CDC, NIH and NIEHS (collectively, "the Government Defendants") on November 5, 2009. In Count I, Ms. Pohl alleged the Government Defendants violated FOIA and revised OMB Circular A-110 by refusing to obtain and produce the research data analyzed in the Lanphear Study in response to her FOIA request. In Count II, Ms. Pohl alleged the manner in which the Government Defendants processed her FOIA request violated FOIA and the Administrative Procedures Act ("APA").
Following the initial case management conference on December 17, 2009, the Court entered an Order referring the case to Early Neutral Evaluation. (Doc. No. 8). Approximately a month later, the Government Defendants filed a motion to transfer the case to non-binding arbitration.
On May 7, 2010, Ms. Pohl moved to amend her complaint to assert additional claims against the Government Defendants, add claims against CCHMC and Dr. Lanphear, and add necessary supporting facts based on newly discovered evidence.
Ms. Pohl filed her amended complaint on July 2, 2010. Count I alleged the Government Defendants violated FOIA and revised OMB Circular A-110 by refusing to obtain and produce the research data responsive to her FOIA request. Count II alleged the same conduct constituted a violation of the APA by the Government Defendants. Count III alleged the Government Defendants violated the APA by adopting a general policy of refusing to obtain data requested pursuant to revised OMB Circular A-110 "if the grant recipients refuse to or decline to turn over the data when requested." Count IV sought a writ of mandamus under 28 U.S.C. § 1361 to compel the Government Defendants to obtain and produce the research data responsive to Ms. Pohl's FOIA request. Count V alleged the Government Defendants violated (1) the process prescribed by FOIA for considering initial requests for information and appeals of adverse determinations,
On July 30, 2010, the Government Defendants moved to dismiss the APA claims in Counts II, III and V of Ms. Pohl's amended complaint under Fed.R.Civ.P. 12(b) (1) or, alternatively, under Fed.R.Civ.P. 12(b) (6), and the claim for a writ of mandamus in Count IV under Fed. R. Civ. P. 12 (b) (6). (Doc. No. 30).
By Memorandum Opinion and Order dated October 29, 2010, the Government Defendants' partial motion to dismiss Ms. Pohl's amended complaint was granted in part and denied in part. (Doc. No. 48). First, the Court concluded the research data requested by Ms. Pohl were not "agency records" subject to FOIA. Rather, regulations of the EPA and HHS implementing revised OMB Circular A-110 required the agencies to request the research data sought by Ms. Pohl from the recipient of the grants awarded to fund the Lanphear Study. Because FOIA does not include this requirement, FOIA could not provide an adequate remedy for the agencies' failure to produce the research data requested by Ms. Pohl. Thus, the Government Defendants' motion to dismiss the APA claim in Count II was denied.
On November 22, 2010, the EPA's FOIA Dispute Decision Official issued a decision in connection with a FOIA request by Robert N. Steinwurtzel, counsel for the Association of Battery Recyclers, Inc., that was identical to Ms. Pohl's FOIA request. In fact, the FOIA Official noted in footnote 1 of the decision that Ms. Pohl had filed a FOIA request for the research data prior to Mr. Steinwurtzel's request; Ms. Pohl's FOIA request had been forwarded to HHS for processing; Ms. Pohl's FOIA request was the subject of litigation in the Western District of Pennsylvania; and CCHMC and Dr. Lanphear were parties to that litigation.
On November 29, 2010, counsel for CCHMC and Dr. Lanphear sent a letter to Government counsel, indicating that in light of the decision of the EPA regarding Attorney Steinwurtzel's FOIA request, as well as the litigation initiated by Ms. Pohl, his clients had decided not to further contest their obligation to produce the research data analyzed in the Lanphear Study. A CD containing the research data was enclosed with the letter. (Doc. No. 87-9, pp. 5-6). Government counsel promptly notified Ms. Pohl's counsel of her receipt of the research data responsive to the FOIA request. (Doc. No. 87-9, p. 19).
During a case management conference on December 2, 2010, Government counsel informed the Court that the research data responsive to Ms. Pohl's FOIA request recently had been received from CCHMC and Dr. Lanphear; and that the research data would be reviewed for FOIA exemptions and likely produced to Ms. Pohl within 8 weeks. The Court memorialized Government counsel's representations in an Order directing production of the research data by February 11, 2011, and scheduling a further conference in March. (Doc. No. 59).
On January 28, 2011, Government counsel provided Ms. Pohl with a CD containing the research data. Government counsel noted that the production contained the data files and data dictionaries in the agencies' possession; however, the agencies did not possess data collection forms and the agencies would not provide "software programs" because computer software is not an "agency record."
By letter dated February 18, 2011, counsel for Ms. Pohl notified Government counsel that several files necessary to make the FOIA request complete were missing. The missing files consisted primarily of data dictionaries containing definitions of the variables referenced in the data files without which the data could not be interpreted. Counsel indicated the missing files would have to be produced before Ms. Pohl would entertain the possibility of dismissing the case. (Doc. No. 80-2, pp. 2-4).
On March 4, 2011, Government counsel sent an email to Ms. Pohl's counsel to which additional data files and data dictionaries were attached. The email indicated that CCHMC and Dr. Lanphear had provided the additional files to the Government in response to counsel's February 18
Subsequently, an issue arose regarding whether software code utilized in the Lanphear Study should have been included in the FOIA production. On April 4, 2011, counsel for Ms. Pohl sent the following email to Government counsel regarding an amendment to Ms. Pohl's FOIA request: "With regard to amending the FOIA request, please advise if you find the following language a sufficient description of the file most recently released to you by the hospital: `Statistical Analysis Software (`SAS') code used in the Lanphear Study.' If this is satisfactory, I will draft an amendment letter for all the parties (sic) review." (Doc. No. 80-4, p. 4).
Government counsel responded on April 6, 2011, stating:
(Doc. No. 80-4, pp. 3-4).
Ms. Pohl's counsel promptly responded, asserting that the EPA's reading of the FOIA request was incorrect. In particular, in paragraph 2, the FOIA request included "any software programs required to access and analyze the data identified in paragraph 1 in its computerized form." According to counsel, this language encompasses "software code or analysis." Thus, the Government Defendants were asked to produce the remaining record in its possession. (Doc. No. 80-4, p. 2). Shortly thereafter, Government counsel responded, stating "the agency did consider whether this records (sic) was a `software program and determined that the researcher's code or analysis does not fall within the meaning of a `software program,'" and, as stated previously, "the agencies will not provide `software programs' as computer software is not an `agency record' subject to production under FOIA." Counsel concluded the email as follows:
(Doc. No. 80-4, p. 2).
During a conference with the Court on May 5, 2011, counsel for CCHMC and Dr. Lanphear reported that all records responsive to Ms. Pohl's FOIA request had been produced, and Ms. Pohl's request for attorneys' fees and costs from the Government Defendants under 5 U.S.C. § 552(a) (4) (E) was discussed.
Based on three status reports filed by the parties on August 8 and August 9, 2011, which indicated that a settlement of Ms. Pohl's request for attorneys' fees and costs from the Government Defendants under FOIA had not been reached, a conference was scheduled for August 23, 2011. (Doc. No. 72). In light of the parties' continued inability to resolve Ms. Pohl's request for attorneys' fees and costs under FOIA, the Court entered an Order on September 29, 2011. Ms. Pohl was directed to file a motion for attorneys' fees and costs with a supporting brief and affidavits by October 28, 2011, and the Government Defendants were directed to file their brief in opposition with supporting affidavits by November 28, 2011. (Doc. No. 78). The motion and supporting and opposing briefs were filed as directed. (Doc. No. 79, No. 80, No. 87). In addition, Ms. Pohl moved for leave to file a reply brief which was granted. (Doc. No. 89, No. 90). The reply brief was filed by Ms. Pohl on December 12, 2011.
FOIA 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." 5 U.S.C. § 552(a) (4) (E) (i). The main purposes of FOIA's provision allowing for an award of attorneys' fees and costs to a substantially prevailing party are: (1) "to encourage [FOIA] suits that benefit the public interest," and (2) to provide "compensation for enduring an agency's unreasonable obduracy in refusing to comply with [FOIA]'s requirements."
When presented with a request for an award of attorneys' fees and costs under FOIA, the Court must initially determine whether the plaintiff is "eligible" for such an award; that is, whether the plaintiff "substantially prevailed." If so, the Court then must determine whether the plaintiff is "entitled" to an award of attorney fees and costs. A plaintiff is not necessarily "entitled" to an award of attorney fees and costs based on "eligibility" for such an award.
As noted in the Court's summary of this litigation, Ms. Pohl asserted both substantive and procedural claims against the Government Defendants arising out of the processing of her FOIA request. The substantive claims were set forth in Counts I, II and III of the amended complaint. The same conduct,
In ruling on the Government Defendants' motion to dismiss the substantive claims asserted by Ms. Pohl under the APA in Counts II and III of the amended complaint, the Court concluded that FOIA did not provide an adequate remedy for these claims. Thus, the Government Defendants' motion to dismiss the APA claims in Counts II and III was denied. Specifically, the Court stated:
(Doc. No. 48, pp. 12-13).
As noted by the Government Defendants, the foregoing decision constitutes the law of the case. (Doc. No. 87, p. 11). Therefore, there is no basis for awarding attorneys' fees and costs to Ms. Pohl under FOIA based on the substantive claims in Counts I, II and III of the amended complaint.
The procedural claims against the Government Defendants under FOIA in Count V of the amended complaint were based on (a) the EPA's referral of Ms. Pohl's FOIA request to HHS for processing after her successful appeal to the EPA's National FOIA Officer, and (b) HHS's failure to decide Ms. Pohl's appeal from the denials of her FOIA request by the CDC and NIH in a timely manner.
Ms. Pohl initially asserts that she substantially prevailed in this litigation because she obtained relief through a "judicial order." Specifically, Ms. Pohl asserts that the Government Defendants "delayed turning over the data to [her] for over three years, but once this Court ordered the production of the data on December 2, 2010, the [Government] Defendants took less than two months to provide Plaintiff with the . . . information requested." (Doc. No. 80, pp. 10-11). After consideration, the Court finds this argument unpersuasive.
As noted by the Government Defendants, the Order on which Ms. Pohl relies to meet the threshold requirement of eligibility for an award of attorneys' fees and costs under FOIA is not the type of judicial order that satisfies 5 U.S.C. 552(a) (4) (E) (ii) (I). (Doc. No. 87, p. 13). The Court's December 2, 2010 Order merely memorialized the representations of Government counsel during a case management conference concerning the period needed to review the research data provided by CCHMC and Dr. Lanphear for exemptions before production to Ms. Pohl. The December 2, 2010 Order did not change the legal relationship of the parties.
As further noted by the Government Defendants, the Court's December 2, 2010 Order did not relate in any way to Ms. Pohl's procedural claims, the only claims in the amended complaint the Court has concluded could be brought under FOIA. (Doc. No. 87, p. 14). Simply put, the Order had nothing to do with Ms. Pohl's complaint concerning the EPA's referral of her FOIA request to HHS for processing after the favorable ruling by the EPA's National FOIA Officer or her complaint about HHS's delay in processing her appeal.
Finally, the Court agrees with the Government Defendants that its December 2, 2010 Order cannot be construed as "judicial relief" rendering Ms. Pohl eligible for an award of attorneys' fees and costs under FOIA "because the agencies still had the right to withhold certain documents as nonresponsive to [Ms. Pohl's] request or exempt from production under FOIA, and the merits of any agency withholding were never addressed by this Court." (Doc. No. 87, p. 15).
Ms. Pohl also asserts that she substantially prevailed in this litigation under the catalyst theory. Specifically, Ms. Pohl contends:
(Doc. No. 80, p. 12)
Again, the Court finds Ms. Pohl's argument unpersuasive.
The Court agrees with the Government Defendants that the only change in position in this case occurred after Ms. Pohl filed her amended complaint and that change was on the part of Dr. Lanphear. Prior to being added as a defendant in Ms. Pohl's amended complaint (and the EPA's decision on Attorney Steinwurtzel's FOIA request for the research data analyzed in the Lanphear Study), Dr. Lanphear refused to comply with the CDC's numerous requests for the research data or copy of the co-investigators' confidentiality agreement on which he relied in arguing that the research data was exempt from revised OMB Circular A-110. Within a month of filing an answer to Ms. Pohl's amended complaint, however, CCHMC and Dr. Lanphear produced the research data, and, on the very same day, Government counsel informed Ms. Pohl's counsel that the agencies would begin processing her FOIA request for exemptions. As noted by the Government Defendants, this action is entirely consistent with the CDC's position that it could not obtain the research data from CCHMC and Dr. Lanphear. In sum, the Court finds no causal connection between the filing of this case and the Government Defendants' production of the requested research data.
Finally, the Court finds that Ms. Pohl's procedural FOIA claims were insubstantial, precluding a determination that she is eligible for attorneys' fees and costs under FOIA. As to the EPA's referral of Ms. Pohl's FOIA request to HHS, it is clear that the EPA could have processed the request under revised OMB Circular A-110 because it was an awarding agency with regard the Lanphear Study. However, HHS also was an awarding agency with substantial interest in the Lanphear Study. Therefore, the processing of Ms. Pohl's FOIA request under revised OMB Circular A-110 by HHS was proper. In any event, there is no evidence Ms. Pohl objected to the EPA's referral of her FOIA request to HHS. Under the circumstances, the Court finds she waived any claim arising out of it.
As to the length of time Ms. Pohl's appeal was pending before HHS, the Court concludes that the delay did not result in any harm to Ms. Pohl. Therefore, this procedural claim also is insubstantial. A regulation of HHS specifically states: "If we fail to meet the deadlines, you may proceed as if we had denied your request or your appeal." 45 C.F.R. § 5.35(a). Accordingly, Ms. Pohl could have initiated this litigation 21 days after the appeal, which was filed on January 9, 2009, reached the appropriate review official and was not decided. It is unclear why Ms. Pohl chose to wait until November 9, 2009 to file her complaint.
Based on the foregoing, Ms. Pohl's motion for an award of attorneys' fees and costs under FOIA will be denied.
After publishing two proposed revisions and receiving over 12,000 comments, OMB published the final revision of Circular A-110 in October of 1999, 64 Fed.Reg. 54926 (October 8, 1999), which became effective April 17, 2000. 345 F.Supp.2d at 595.
