The Freedom of Information Act (FOIA) includes a fee-shifting provision to incentivize private individuals to bring FOIA compliance actions. An award of fees is not automatic, rather, a FOIA plaintiff must have been successful in the action and must also be entitled to fees.
Following the favorable judgment obtained on September 26, 2006, we promptly stipulated for an extension of the fourteen day window with which to file our motion. The brief window is defined by N.D.C.A. local rules. We compiled all the records of our time and promptly contacted the Assistant US Attorney to negotiate a settlement in the hopes of avoiding further litigation. Unfortunately, these negotiations were largely unsuccessful, leaving us no alternative but to draft and file a motion.
I have attached the motion we submitted to the court on November 3, 2006. The motion argues that we should be awarded fees because we are both eligible and entitled. Eligibility is established when a FOIA litigant ‘substantially prevails’. This prong of the test typically addresses situations in which the government hands over documents after the commencement of a FOIA action but before an order compelling production is obtained by the plaintiff. Our argument here is strong: we received an order compelling the production of documents.
The second prong, entitlement to fees, is usually a bit more difficult to establish. A plaintiff must establish that a) the FOIA action benefited the public, b) the plaintiff’s interest in the information was not commercial, c) nor strictly personal in nature, and d) that the government had a reasonable basis for withholding the records. We firmly believe that we are entitled under each sub-factor of this analysis. Our public interest analysis is strong: the legislative history specifically identifies journalists (recall Poulsen writes for Wired News) as being at the sweet-spot of the FOIA scheme. Moreover, we established that the government improperly withheld information by overcoming a variety of claimed exemptions.
The government must file its opposition brief by December 29, 2006. We will then draft and file a reply to the opposition by January 5, 2007. The stage is being set for one final showdown between Poulsen and the government on January 19, 2007 at the N.D.C.A. courthouse. We will keep you posted!