WP Co. v. Dep't of Homeland Sec.

1

WP COMPANY LLC Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

No. 1:20-cv-1487 (TNM)

United States District Court, District of Columbia

February 6, 2023

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

The Washington Post filed Freedom of Information Act requests with the Departments of State and Homeland Security. When the agencies were slow to deliver, the Post sued. Eventually they produced all the documents. Now, all that remains of this case is the Post's motion for attorneys' fees and costs. The Court finds that the Post qualifies for fees and deserves them. But because the Post's fees request is excessive, the Court will award the Post less than it seeks.

I.

During Donald Trump's presidency, the Washington Post ran a series of stories about government payments to Trump-owned businesses. See Compl. ¶ 1, ECF No. 1. According to the Post, State and Secret Service employees had racked up large bills at Trump properties. See e.g., id. ¶¶ 13-14.

To investigate this story, the Post filed dozens of FOIA requests. This case arises from 11 it lodged with DHS, the Secret Service's parent agency, and another eight it sent to State. See id. ¶¶ 19, 34. After neither agency produced any records, the Post sued. Id. ¶¶ 3-4. And the Post later amended its Complaint to add another 15 FOIA requests. See generally Am. Compl., ECF No. 27.

Both agencies produced records to the Post. See Joint Status Report, ECF No. 28. And after two years, the Post decided it was satisfied with their responses. See Joint Status Report, ECF No. 38 (“[The Post] has indicated that it does not wish to challenge any withholdings or the searches.”). That resolved the core of this case.

The Post then moved for attorneys' fees and costs. See Mot. for Fees, ECF No. 39. In the Post's view, it is both eligible for and entitled to fees. Id. at 2. The agencies disagree on both counts. See Gov't Opp'n, ECF No. 42.

The Court finds that the Post is eligible for fees and entitled to them as well. But the Court also finds that the Post's fee request is unreasonable, so the Court will reduce it. The Post's costs request is reasonable, so the Court will grant it in full.

II.

To get fees, the Post must clear two hurdles: it must show both that it is eligible for fees and that it is entitled to them. Jud. Watch, Inc. v. DOC, 470 F.3d 363, 368-69 (D.C. Cir. 2006). And if it does that, the Court then asks whether its request is reasonable.

1. Eligibility. FOIA's statutory scheme governs eligibility for fees. The Court may award reasonable fees only if the Post “substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). And the Post has “substantially prevailed” if it has “obtained relief through either . . . (I) a judicial order . . . or (II) a voluntary or unilateral change in position by the agency.” Id. § 552(a)(4)(E)(ii).

2. Entitlement. If the Post can show that it is eligible for fees, the Court next considers whether it should award them. To figure that out, the Court must look to “four factors: (1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the reasonableness of the agenc[ies'] withholding.” Jud. Watch, 470 F.3d at 369 (cleaned up).

If the Post meets those requirements, then the Court must consider the fee itself-both the number of hours the Post's lawyers worked and how much those lawyers charged per hour. See id. The Court's compass here is reasonableness.

III.

The Court finds that the Post is both eligible for fees and entitled to them. Consider each in turn.

A.

Start with eligibility. To be eligible for fees, the Post must have “substantially prevailed” in this case. 5 U.S.C. § 552(a)(4)(E)(i). Thus, it must show that it “obtained relief through either . . . a judicial order” or “a voluntary or unilateral change in position by the agency.” Id. § 552(a)(4)(E)(ii).

The Post says it did both. See Mot. for Fees at 4-5. It notes that “the State Department was ordered to make rolling productions” (judicial order). Id. at 5. And it urges that “DHS elected to produce records only after the lawsuit was filed” (change in position). Id. The Court agrees that the Post “obtained relief through . . . a judicial order.” 5 U.S.C. § 552(a)(4)(E)(ii).

“Scheduling orders requiring production by a certain date may [satisfy the eligibility prong] . . . because with their entry, the plaintiff has gained a judgment that can be enforced through contempt.” Urb. Air Initiative, Inc. v. EPA, 442 F.Supp.3d 301, 311 (D.D.C. 2020). Thus, in Davy v. CIA, the D.C. Circuit found that a plaintiff had substantially prevailed because the district court had ordered documents produced by specific dates. 456 F.3d 162, 165 (D.C. Cir. 2006) (“Davy I”).

The same happened here. Four times, the Court ordered State to produce documents by a specific date. See Order at 3, ECF No. 15 (State must “make an initial production of responsive documents by October 15, 2020.”); Min. Order (Oct. 1, 2020) (State “shall make a second production on or before November 16, 2020.”); Min. Order (Dec. 1, 2020) (“State shall make another production on or before December 14, 2020.”); Min. Order (Jan. 4, 2021) (“State shall make another production on or before February 15, 2021.”). So the Post “substantially prevailed” by “obtain[ing] relief through . . . a judicial order.” 5 U.S.C. § 552(a)(4)(E). And it is thus eligible for fees.

B.

Next, consider entitlement. To determine whether to award fees, the Court looks to “four factors: (1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the reasonableness of the agenc[ies'] withholding.” Jud. Watch, 470 F.3d at 369 (cleaned up). Based on these, the Court finds that the Post is entitled to fees.

1. Public benefit. This factor cuts in the Post's favor because the public had an interest in the information sought. The FOIA requests related to government spending. And in other FOIA contexts, courts “have recognized a public interest in determining whether government programs . . . involve fraud, waste, or abuse.” WP Co. LLC v. SBA, 502 F.Supp.3d 1, 23 (D.D.C. 2020) (collecting cases). That is true here too. Such news “add[s] to the fund of information that citizens may use in making vital political choices.” Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979) (cleaned up).

Pushing back, the agencies note that they had already gotten many similar FOIA requests.

Thus, they argue, the Post's “lawsuit did not reveal the same magnitude of new information.” Opp'n at 14. Fair enough. But that only makes this factor weigh less heavily in the Post's favor; it does not tip the balance toward the agencies.

Indeed, the D.C. Circuit found that this factor favored the plaintiff where “[a]t least one of the requested documents was not previously available to the public” and that document provided important information. Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008) (“Davy II”). And the agencies argue only that the Post's requests failed to get “the same magnitude of new information,” not that they got no new information whatsoever. Opp'n at 14 (emphasis added). So this factor favors the Post.

2 & 3. Commercial benefit & nature of interest. Courts consider factors two and three in tandem. These factors ask “whether the plaintiff had a sufficient private incentive to pursue his FOIA request even without the prospect of obtaining attorneys' fees.” McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 712 (D.C. Cir. 2014) (cleaned up). Along with the first, they “assist a court in distinguishing between requesters who seek documents for public informational purposes and those who seek documents for private advantage.” Davy II, 550 F.3d at 1160.

Unsurprisingly, then, these factors usually favor FOIA requests from reporters. The D.C. Circuit “has long recognized that news interests, regardless of private incentive, generally should not be considered commercial interests for purposes of the second factor.” Id. (cleaned up). And so long as the requester's interest is not “frivolous or purely commercial [in] nature,” courts will “generally award fees” for news requests. Id. at 1160-61 (cleaned up).

In response, the agencies say that “it is possible that the information will become the subject of published books of commercial value.” Opp'n at 15. True enough. But the mere chance that the documents could be used for a book does not make these requests private. Even an “intention to publish a book [would] not necessarily mean that the . . . [Post's] interest is purely commercial.” Davy II, 550 F.3d at 1160 (cleaned up).

Nor is the Court persuaded by the agencies' musing that “it appears plausible that Plaintiff was motivated in part by its or its reporters' own private interests.” Opp'n at 15. These FOIA requests fit squarely with the Post's public reporting about government spending during the Trump administration. Thus, they were for a news purpose and these two factors favor the Post as well.

4. Reasonableness of withholding. This factor considers whether the agencies “had a reasonable basis in law” for opposing disclosure and whether they otherwise behaved unreasonably. Davy II, 550 F.3d at 1162 (cleaned up). The agencies say this factor is dispositive. Opp'n at 12-13. They argue that their delay in processing the Post's requests was justified. For one, most of the requests were lodged right before the start of COVID, “which upended State's processing capabilities.” Id. at 16. More, most of the requests “required external and internal consultations.” Id.

The Post argues that the agencies' excuses cannot excuse the agencies'...