When Congress amended the Freedom of Information Act in 1974, it included certain provisions allowing for the recovery of attorneys' fees by plaintiffs who successfully sued the government for disclosure of records, and they even went so far as to establish sanctions for government employees who willfully disobeyed the mandates of FOIA. While the award of fees or the levying of sanctions was left to the discretion of the district court, the purpose of these provisions was to encourage agencies to obey the law.
Recently, Judge Royce Lamberth of the U.S. District Court in Washington, D.C., assessed the government several hundred thousand dollars for attorneys' fees as a result of the litigation surrounding the resistance shown by the Clinton Health Care Reform Task Force to open its meetings and records to the public. Lamberth actually accused Ira Magaziner of willfully misleading the court.
While the award was a drop in the bucket compared to most government spending, it was a fee that could easily have been avoided if the government had been willing to comply more fully with the open government laws in the first place.
Access laws have always provided a number of administrative and civil remedies that requesters can use to challenge an agency's decision to withhold records. In the federal system, a dissatisfied requester can appeal his or her denial to a higher administrative level. If still dissatisfied, the requester can go to district court and, theoretically, on up through the Supreme Court; typically a FOIA case goes no further than the U.S. Court of Appeals for the circuit in which the case was brought. States provide other avenues -- such as the Attorney General's Office in Kentucky or Texas -- as well as court remedies. But until 1974, Congress had not provided any revenue source to support these remedies. While FOIA litigation is among the least complicated areas of civil litigation, cases can easily cost in the thousands of dollars and can occasionally result in attorneys' fees of hundreds of thousands of dollars.
Because courts were vested with the discretion to award attorneys' fees, Congress did not intend that all litigants would be reimbursed. A plaintiff must "substantially prevail," which can mean anything from winning release of all the requested records to winning disclosure of one or a handful of particularly important documents. If he or she passes that threshold test, the court assesses the public interest in disclosure, the commercial or personal interest of the requester in the information and the reasonableness of the government's basis for withholding the records. If the court decides the balance of these factors weighs in favor of the plaintiff, it will award reasonable attorneys' fees, which can be market rates for the attorneys working on the case. When those attorneys are from large corporate firms, such rates can be $200-$300 an hour. The California Legislature won an attorneys' fees case over records concerning the 1990 census in which the government was required to pay $250,000.
"PRIVATE ATTORNEY GENERALS"
What exactly are the policy considerations behind attorneys' fees? Since FOIA makes attorneys' fees discretionary, in some states -- like Florida, Wisconsin or Washington -- fee awards are mandatory for successful parties. Thus, whether or not an agency had a legitimate reason for believing the records were exempt, if a court finds the records should be disclosed, it has no recourse except to award fees; a minimum fee is often set out in the statute, such as $100 a day. Although the court cases do not bear this out, I have always believed the attorneys' fees provisions in FOIA were punitive in nature and emanate from a policy particularly popular with legislators in the 1960s and 1970s -- what Supreme Court Justice William O. Douglas referred to as "private attorney generals." In other words, private litigants under a variety of federal statutes were placed in the shoes of an attorney general and were allowed to pursue a claim to enforce the statute.
Not that fees should be seen as the pot of gold at the end of the rainbow. But what courts have increasingly seen them as is the rare instance when the government was so unreasonable in its position that an award just has to be given.
One case that turned the tide against attorneys' fees awards was brought by Tax Analysts, a Washington-based nonprofit group that publishes materials on tax issues against the Department of Justice. Tax Analysts wanted all the federal decisions on tax cases that came to DOJ. Because the records were not exempt, DOJ crafted an argument that the records were publicly available from the individual courts and thus were not required to be provided by the agency. While a district court judge agreed, both the U.S. Court of Appeals for the District of Columbia Circuit and the Supreme Court disagreed and told DOJ to disclose the records.
When Tax Analysts pursued an action for attorneys' fees, the D.C. Circuit denied them by finding Tax Analysts had a strong enough economic incentive to pursue the litigation. The unanswered question was why Tax Analysts was required to spend a large amount of money to make the government release records that should have been released in the first place.
One prominent difference between English and American jurisprudence is how the two systems distribute the costs of litigation. In the English system, the loser is required to pay the costs of the party that prevailed. But the "American Rule" is that both parties should bear their own expenses. This rule is frequently waived legislatively, and the FOIA attorneys' fees provisions are but one example. What such fee-shifting policies seem to be aimed at are the reimbursement of the parties who have gone to the expense of a successful litigation.
Most FOIA litigation is not ultimately successful, and even successful litigants do not always deserve to be reimbursed. Those who meet the standards of the four factors should expect to get some compensation. But the courts have interpreted the need to show a public interest as a requirement to show that the release of records serves the public interest. However, the primary goal of the fees provision should be the vindication of the rights of requesters. When the government is shown to be withholding records for no reason at all or even a marginally acceptable reason, such recalcitrance should be punished through an award of fees or, at least, actual costs.
The truth is that there is no downside to litigation on the part of the agency. The Justice Department defends the agency, and any fees awarded do not come directly out of the agency's budget. By going to court, however, the agency postpones any disclosure of the documents perhaps forever or, at least, for the foreseeable future.
For years the agencies have complained about the costs of administering FOIA, which are now probably somewhere in the neighborhood of $80 million a year. But agencies never account for the waste of money and time incurred by going to court where there is little reason to withhold a document except for the fact that the document can be shoehorned into one or more exemptions. If agencies were made accountable for the amount of money expended in litigation and were forced to provide Congress with detailed explanations of why litigation was deemed necessary, in light of the Clinton administration's emphasis on withholding only where disclosure would lead to a foreseeable harm, then they might begin to think twice before letting the situation get out of hand.
The only potentially successful tools for monitoring government compliance with FOIA are the costs of litigation