In FOIA attorney fee cases, courts have created a false dichotomy between those requests for information that are in the public interest and those that further a private commercial interest, except those private commercial interests represented by mainstream media. This distinction fails to consider that the commercial frequently becomes political. For example, look at what happened when Eller & Co, a South Florida-based terminal and stevedoring company, raised a stink about becoming “involuntary partner” of DP World – the Dubai Ports World Scandal, ultimately leading to a vigorous debate on issues of national security in our ports. The purpose of this post is to identify a principle that would allow a corporation or individual not involved in media to satisfy the public interest test for attorney fees.
To get attorney fees, an applicant must show that 1) she is “eligible” for an attorney fee award, and 2) she is “entitled” to such an award. Church of Scientology of California v. Harris, 653 F. 2d 584, 587 (D.C. Cir.1981). The eligibility factor tests whether the petitioner “substantially prevailed” in obtaining documents through the FOIA litigation, which as I explained here, is defined by statute to mean documents either voluntarily disclosed as a result of the litigation, or ordered by a court to be disclosed. 5 U.S.C. § 552(a)(4)(E)(ii). Courts have added an additional requirement that the litigation have been “necessary” to obtain the requested documents. Church of Scientology, 653 F.2d at 587-88.
As discussed here, the entitlement showing is a court-created test that balances four factors: (1) the benefit to the public, if any, derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) whether the government’s withholding of the records had a reasonable basis in law. Id. The remainder of this post will discuss how the first factor, the public benefit test, has been applied in the DC federal courts.
While “the release of any government document benefits the public by increasing citizens’ knowledge of their government,” the courts have interpreted the legislative history of the FOIA attorney fees provision to narrow the “public benefit” to those cases “where the complainant’s victory is likely to add to the fund of information that citizens may use in making vital political choices.” Fenster v. Brown, 617 F. 2d 740, 744 (D.C. Cir. 1979) (quoting Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978)). This “fund of information” test is no less nebulous than the general “public interest”, but seemed to have been intended to draw a line between the commercial and the political. In Fenster, the district court noted that few copies of a released Defense Contractor Audit manual were sold; in approving the denial of attorney fees, the circuit court stated that because the manual helped contractors with audits, its release “basically furthers a private commercial, and not the general public, interest.” Fenster, 617 F.2d at 745.
In looking at the DP World Ports example, which I chose as an example precisely because I don’t believe that Eller & Co had a FOIA case, if Eller had gotten documents through a litigated FOIA case, even though Eller’s motivation was to further a private interest, the general public certainly showed interest in the DP World issue. Eller’s (hypothetical) actions “add[ed] to the fund of information that citizens may use in making vital political choices.” Courts are supposed to look at commercial benefit and the complainant’s interest in elements (2) &(3) of the entitlement test; the DP World example shows how the public interest could benefit even if elements (2) & (3) pointed to a private commercial interest.
The confusion in the courts among these elements seems to stem from the original confusion in the Senate Committee discussion of the public interest factor. In Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F. 2d 704, 712 (D.C. Cir. 1978), in reversing the district court to allow it to apply all entitlement factors, the court quoted from the Senate Committee discussion of the public interest factor:
Under the first criterion a court would ordinarily award fees, for example, where a newsman was seeking information to be used in a publication or a public interest group was seeking information to further a project benefitting the general public, but it would not award fees if a business was using the FOIA to obtain data relating to a competitor or as a substitute for discovery in private litigation with the government.
Senate Judiciary Committee Report on S. 2543, S.Rep. No. 93-854, at 19. The court went on to describe some previous applications of the public interest standard: those denied fees were individuals who sought information related to IRS disputes or their tax litigation ( Pope v. United States, 424 F.Supp. 962 (S.D.Tex. 1977); Chamberlain v. Alexander, 419 F.Supp. 235 (S.D.Ala. 1976)); and individuals who sought information to gain commercial advantage in litigation (Kaye v. Burns, 411 F.Supp. 897, 902 (S.D.N.Y. 1976)); whereas “a television producer who had sought information for use in a public television documentary and a book” was granted attorney fees (Goldstein v. Levi, 415 F.Supp. 303, 304-05 (D.D.C. 1976)).
Similar to those cases with individuals who sought documents relating to their tax disputes, in LaSalle Extension University v. FTC, 627 F. 2d 481 (D.C. Cir. 1980), the release of documents related to an FTC investigation of a distance learning institution was not considered in the public interest; nor was the release of documents related to an employee’s suit against the Smithsonian. Cotton v. Heyman, 63 F. 3d 1115, 1120 (D.C. Cir. 1995) (“When a litigant seeks disclosure for a commercial benefit or other personal reasons, an award of fees is usually inappropriate.”). In Barnard v. Dept. of Homeland Sec., 656 F. Supp. 2d 91, 99 (D.D.C. 2009), the court found that documents relating to whether DHS repeatedly detained the director of Physician’s Committee for Responsible Medicine for improper political reasons was not in the public interest because the plaintiff did not show that “the documents which were released yielded information that citizens could rely on in marking ‘vital political choices.’” Id.