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.

FOIA FEES

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

Harry Hammitt  |  Contributing Writer