Costs and Attorney Fees


 * This article is part of a series on Litigation

Introduction
Attorney fees relate to the fees charged by counsel in connection with legal advice and/or representation during a FOIA case.

"Costs" in a FOIA case have been interpreted to include photocopying, postage, typing, transcription, parking, and transportation expenses, in addition to routine filing costs and marshals' fees paid at the trial level as well as the fees paid to a special master appointed by the court to review documents on its behalf.

When can attorney fees be awarded?
In a FOIA lawsuit, the trial court may award attorney fees to a plaintiff who has "substantially prevailed." This involves the court conducting a two-stage inquiry:
 * 1) The court must determine if the plaintiff is eligible for an award of fees and/or costs;
 * 2) The court must then determine if the plaintiff is entitled to the award.

Even if a plaintiff meets both of these tests, the award of fees and costs is entirely within the discretion of the court.

Determining eligibility
To be eligible, the plaintiff must have “substantially prevailed” in the litigation. For a party to have “substantially prevailed,” a court need only find that “the prosecution of the action could reasonably have been regarded as necessary and that the action had substantial causative effect on the delivery of the information.” A final judgment in favor of plaintiff is not necessary for a finding that a plaintiff has “substantially prevailed.”

Plaintiffs can qualify as "substantially prevailing," and thus become eligible for attorney fees under Freedom of Information Act (FOIA), without winning court-ordered relief on the merits of their FOIA claims.

Determining entitlement
Even if a plaintiff satisfies the threshold eligibility standards, a court still must exercise its equitable discretion in separately determining whether that plaintiff is entitled to an attorney fee award. This discretion ordinarily is guided by four traditional criteria, namely:
 * (1) the public benefit derived from the case
 * (2) the commercial benefit to the complainant
 * (3) the nature of the complainant's interest in the records sought
 * (4) whether the government's withholding had a reasonable basis in law.

The Public Benefit
Any FOIA disclosure theoretically benefits the public by making available more information about the government and its functions. However, courts have held that this very broad and general "public benefit" is not sufficient. Instead, the "public benefit" factor "speaks for an award [of attorney fees] when the complainant's victory is likely to add to the fund of information that citizens may use in making vital political choices." This has led to findings of "public benefit" in a number of contexts. For example:
 * Where, by requesting certain information, the plaintiff was "holding [the defendant] publicly accountable for the accuracy of its statements in a press release and ensuring [the defendant's] compliance with its Congressional mandate"
 * Where the plaintiff tailored the request to further its mission as non-profit designed to alert public of risks associated with xenotransplantation
 * Where the plaintiff's "attempts at identifying the precise connection between three high-ranking elected officials and a real estate developer surely would aid individuals in making a most vital political choice"
 * Where the documents disclosed pertained to struggle between organization and IRS to obtain tax-exempt status for the first openly gay organization
 * Where the records concerned the Department of Labor's investigation of corporate pension plan, and "millions of Americans" had an interest in agency's effort to ensure "that private pension plans remain solvent and viable"
 * Where the disclosed records permitted the public to "assess" whether USDA complied with regulations when it made loan guarantee to large distributor of puppies
 * Where the release of records concerning the death of an inmate in BOP's custody served the public's interest "in ensuring that the BOP fulfill[ed] its statutory duty to safeguard the well-being of individuals in its custody"
 * Where the released records were regarding DHS's handling of plaintiff's high-profile asylum case
 * Where the released information concerned allegations of evidence tampering by FBI personnel

Where the information at hand is already in the public domain, it will be difficult to argue that that there is significant public benefit derived from the case.

The Commercial Benefit
Analysis of the commercial benefit to the plaintiff requires an examination of whether the plaintiff had an adequate private commercial incentive to litigate its FOIA demand even in the absence of an award of attorney fees. If so, then fees are typically denied. However, note the exception here in the case of news media interests, which generally "should not be considered commercial interests."

The Nature of the Complainant's Interest In The Records
This is often evaluated together with the commercial benefit, and weighs against awarding fees in cases where the plaintiff had an adequate personal incentive to seek judicial relief.

To disqualify a fee applicant under the second and third factors, "a motive need not be strictly commercial; any private interest will do." Specifically, the use of the FOIA as a substitute for discovery has routinely been found to constitute the pursuit of a private, noncompensable interest.

However, note that on some occasions, courts have also weighed the second and third factors in favor of a fee applicant even in situations where a personal interest was present. For example:
 * Where the plaintiff's scholarly interest in publishing information in a book was held to be "at most quasi-commercial" and there was nothing to suggest that the commercial interest outweighed the scholarly interest.
 * Where the plaintiff's personal interest "was neither commercial nor frivolous" but instead was to "ensure that the Parole Commission relied on accurate information in making decisions affecting his liberty"
 * Where the plaintiff's interest in the records was personal but an award of fees would nonetheless "serve the larger public purpose of encouraging" representation by pro bono counsel

Reasonableness of the Withholding
This factor weighs against a fee award when the agency had a reasonable basis in law for concluding that the information in issue was exempt. If an agency's position is correct as a matter of law, this factor is often dispositive. By contrast, it is also true that "[r]ecalcitrant and obdurate behavior" on the part of the agency can make the last factor dispositive without consideration of any of the other factors.

In general, an agency's legal basis for withholding has been found "reasonable" if pertinent authority exists to support the claimed exemption. An agency's withholding may also be considered "reasonable" where there is no precedent to directly contradict its actions.

At times, delay in releasing records has been a factor pointing towards agency unreasonableness, with the agency being obliged to demonstrate a meaningful justification for the delay.

An agency's decision to withhold entire documents when it could have processed them relatively easily has also been found "unreasonable" for purposes of the entitlement analysis.

Who can qualify for an award of attorney's fees?
Any FOIA plaintiff, including a corporation or even a State, that does engage the services of an attorney for litigation is eligible to seek an award of attorney fees (and costs).

According to the D.C. Circuit, the Supreme Court has established that subsection (a)(4)(E)(i) of the FOIA does not authorize the award of fees to a pro se non-attorney plaintiff, because "the word 'attorney,' does not encompass a layperson proceeding on his own behalf."

A majority of courts have held that an award of attorney fees will not be possible for a pro se plaintiff who also is an attorney. However, note that the D.C. Circuit HAS concluded that a law firm representing itself is eligible for an award of attorney fees.

Who can qualify for an award of costs?
Unlike attorney fees, the costs of litigating a FOIA suit can reasonably be incurred by, and awarded to, even a pro se litigant who is not an attorney.

If it prevails, a defendant agency may recover its costs pursuant to Rule 54(d) of the Federal Rules of Civil Procedure, although such recoveries are uncommon.

Calculation of Attorney's Fees and Costs
Attorney fees and costs should be supported by well- documented, contemporaneous billing records.

Some courts may consider reconstructed records. However, this can result in the amount awarded being reduced accordingly. With regard to an award of attorney fees, the amount of an award will be dependent upon the reasonable value of the attorney's services. Generally, the starting point in setting a fee award is to multiply the number of hours reasonably expended by a reasonable hourly rate - the result of this calculation is known as the "lodestar" and is strongly presumed to yield the reasonable fee. However, the court can nonetheless consider whether, in the particular circumstances, an adjustment to the lodestar award would be appropriate.

A reasonable hourly rate has been defined "as that prevailing in the community for similar work." In determining this, courts will accept affidavits from local attorneys to support hourly rate claims, but they should be couched in terms of specific market rates for particular types of litigation and they must be well supported.

Note that not all hours expended in litigating a case will be deemed to have been "reasonably" expended. For example, courts have directed attorneys to subtract hours spent litigating claims upon which the party seeking the fee ultimately did not prevail. . So, for example, where party "x" makes a motion deemed by the court to have been unnecessary and unsuccessful, "x" may be unable to recover legal fees associated with that motion.

Attorney fees are not recoverable in respect of legal advice or representation provided during preliminary administrative FOIA proceedings.

Prevailing plaintiffs' counsel are obligated to exercise sound billing judgment. This means that "[c]ounsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary."

Ultimately, the court has discretion as the amount of any award for fees/ costs. However, it must provide a clear, concise explanation of the reasons for any award encompassing eligibility, entitlement, and the rationale for the calculations. Rulings can be reviewed on appeal for "abuse of discretion."