District Court Will Reconsider Fees Upon Remand.
The Freedom of Information Act, 5 U.S.C. § 552 (FOIA), does contain a provision allowing district courts to award fees and costs to parties “substantially prevailing” as against the United States under the statute. (5 U.S.C. § 552(a)(4)(E).) This statute, upon which California’s Public Records Act is modeled, was in play in the next case we discuss.
In Lahr v. National Transportation Safety Board, Case Nos. 06-56717 et al. (9th Cir. June 22, 2009) (for publication), plaintiff Lahr was not convinced that TWA Flight 800—which exploded midair off the coast of Long Island in 1996—was caused, as the government concluded after an extensive investigation, by a fuel tank explosion initiated by an electrical short circuit. Instead, he maintained the government was covering up the real cause: a strike by a missile launched offshore by the U.S. Navy. To prove his theory, he sent more than 200 FOIA requests to several governmental entities. After the agencies only gave him partial information, Mr. Lahr sued and won a summary judgment requiring release of other documents. The district court awarded him $146,442 in costs and fees after finding Mr. Lahr “substantially prevailed” by its order that governmental agencies produce 26 out of 32 contested records.
The government did appeal some of the adverse rulings, obtaining a reversal of a summary judgment determination that the redacted names of eyewitnesses and FBI agents in 11 documents should be revealed by disclosure of the documents in unredacted form. Because this reversal could affect the district judge’s assessment of whether Mr. Lahr “substantially prevailed” or the calculation of the amount to be awarded, the prior award was reversed and remanded for reconsideration. Put another way, the fee award went POOF! with a partial reversal of the summary judgment ruling.
For more information on fee determinations under the “substantially prevailing” component of the FOIA, see Richard Hiff’s 1981 article (“When Plaintiff ‘Substantially Prevails'”), available for reviewing on the FOIA website, and search for FOIA updates on the topic on the website.