For the first time since the District of Columbia adopted its Freedom of Information Act statute in 1976, the District of Columbia Court of Appeals has spelled out when prevailing parties in FOIA cases can recover attorney fees and how judges should weigh those requests.
In an opinion (PDF) issued this morning, a three-judge panel explained that while the city's FOIA law is different from the federal FOIA statute, local trial judges should use the four-factor test that federal judges rely on to decide whether to award attorney fees.
The ruling is a loss for the city's police union, which appealed a District of Columbia Superior Court judge's decision denying attorney fees after the union prevailed in a FOIA case against the city. The appeals court found that Judge Anita Josey-Herring correctly used the four-factor test and upheld her finding that the union failed to satisfy enough of the criteria. The court also rejected the union's argument that prevailing parties should be automatically entitled to fees.
Police union Chairman Kristopher Baumann said the ruling was "unfortunate" and is "yet another obstacle for the public to get information they're entitled to by law because it makes it harder to recover attorney fees."
City Attorney General Irvin Nathan, in a written statement, said his office was "gratified" by the ruling, noting that it provided "strong support" for proposed amendments to the city's FOIA law that are pending before the D.C. Council. "The appellate decision also demonstrates that federal law, to the extent applicable, should provide guidance for the sensible provisions and interpretations of D.C. FOIA law," he said.
Judge Catharine Easterly, writing for the court, found that because Congress and the city government had the same goal in mind when it came to attorney fees — that trial courts should have discretion to award fees where it promotes open government — it made sense for D.C. judges to follow the same guidelines as federal judges.
The four-factor test asks judges to consider any public benefit from the FOIA case, commercial benefit for the plaintiffs, the plaintiff's interest in the case and the government agency's reasonableness in withholding the information requested.
The case involved a request the union submitted in May 2009 for police department emails between top officials referencing Baumann or the union. The city didn't produce the emails, prompting the union to sue in September 2009. After the city continued to fail to meet deadlines, Josey-Herring granted the union summary judgment in July 2010.
Easterly had strong words for how both sides had behaved in the course of the case. She characterized the union's request as a "blunderbuss demand," while chastising the city for its "complete disregard" of its disclosure obligations. "In short, the District's behavior in this case is precisely the type of behavior the fees provision is intended to discourage," she wrote.
While Josey-Herring could have found that the city's behavior warranted fees for the union, the appellate judges found that she did have discretion to make the decision to deny fees as well. Under the four-factor test, Josey-Herring found that there wasn't a strong public benefit in the union's request and that the request was very much in the union's own interest.
Noting that the request wasn't about specific information related to the union's activities on behalf of its members, Easterly wrote, "[s]uch a what-are-they-saying-about-me request seems the essence of self-interest."
Although the union had argued that Josey-Herring improperly weighed each factor in isolation, the court disagreed, even though Josey-Herring hadn't included a final paragraph summarizing how she weighed all the factors. "[W]e decline to hold that the court abused its discretion for want of a few summarizing sentences," Easterly wrote. "Rather, we presume that the trial court found that the lack of public benefit simply outweighed the unreasonableness of the government's behavior in this case."
Chief Judge Eric Washington and Associate Judge John Fisher also heard the case.