Siegelman v. United States Department of Justice

          MEMORANDUM OPINION

          MADELINE HUGHES HAIKALAUNITED STATES DISTRICT JUDGE

         This case arises under the Freedom of Information Act. 5 U.S.C. § 552. Plaintiff Joseph Siegelman filed this action after the Department of Justice denied his administrative request for the production of the Office of Professional Responsibility‘s report of its investigation regarding the prosecution of former Alabama Governor Donald Siegelman.^[1] Following the Court‘s in camera review of the report of investigation (commonly called an ROI), OPR produced the non-exempt portions of the ROI to Mr. Siegelman. (Doc. 27). The Court then dismissed Mr. Siegelman‘s complaint as moot because OPR produced the nonprotected portions of the ROI. (Doc. 28, p. 2).

         Mr. Siegelman has filed a motion for attorney fees and costs. He asserts that he may recover fees and costs because he is the prevailing party in this action. (Doc. 29). For the reasons discussed below, the Court grants Mr. Siegelman‘s motion and provides directions to the parties concerning the assessment of fees.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY^[2]

         OPR investigates allegations of DOJ attorney misconduct. (Doc. 15-2, pp. 2-3, ¶ 3). On June 12, 2015, Joseph Siegelman emailed OPR and requested the ROI concerning OPR‘s investigation of potential prosecutorial misconduct relating to the United States‘ prosecution of former Alabama Governor Siegelman. (Doc. 15-2, p. 19; Doc. 23, pp. 5-6). The ROI is 157 pages long. (Doc. 15-2, pp. 11-15). OPR responded to Mr. Siegelman on June 18, 2015. OPR stated that it would not release the ROI because the ROI was subject to FOIA exemptions 5, 6, and 7(C). (Doc. 15-2, pp. 21-23). OPR withheld the ROI in its entirety. (Doc. 15-2, p. 4, ¶ 7).

         On July 14, 2015, Mr. Siegelman appealed OPR‘s decision to the DOJ‘s Office of Information Policy. (Doc. 15-2, p. 4, ¶ 8). On September 28, 2015, OIP affirmed OPR‘s decision “to withhold the ROI in its entirety pursuant to FOIA exemptions 5, 6, and 7(C)." (Doc. 15-2, p. 4, ¶ 10; see also Doc. 15-2, pp. 32-33).

         Mr. Siegelman then filed this action. (Doc. 1). Mr. Siegelman and OPR filed cross motions for summary judgment. (Docs. 15, 17). In support of his motion for summary judgment, Mr. Siegelman offered a host of exhibits to support his argument that “bad faith by Defendant U.S. Department of Justice" entitled him to production of the ROI “or, at a minimum, in camera review [of the ROI] by the Court." (Doc. 18-2, p. 1). (See Docs. 18-2 through 18-40). In support of its motion for summary judgment, OPR filed the declaration of Ginae Barnett, a member of OPR. In the declaration, Ms. Barnett described the process for evaluating a FOIA request and OPR‘s initial position with respect to Mr. Siegelman‘s FOIA request and then provided “a line-by-line segregability analysis of the ROI." (Doc. 15-2, p. 17, ¶ 36). Based on the segregability analysis, OPR produced to Mr. Siegelman three pages from the ROI consisting of the title page and OPR‘s analytical framework. (Doc. 15-2, p. 17, ¶ 36).

         The Court denied both parties‘ summary judgment motions but granted Mr. Siegelman‘s request for an in camera review of the ROI. (Doc. 23, p. 32). Based on its in camera review of the ROI, the Court identified 34 pages of the ROI that contain information that is not subject to FOIA exemptions. (Doc. 26, pp. 2-5). The Court ordered OPR to show cause why OPR should not redact exempt information from those 34 pages and produce the non-exempt information to Mr. Siegelman. (Doc. 26, p. 5). On February 23, 2018, OPR produced the redacted pages of the ROI to Mr. Siegelman. (Doc. 27, p. 2). The Court then dismissed Mr. Siegelman‘s FOIA action as moot due to OPR‘s production of the redacted ROI. (Doc. 28).

         Mr. Siegelman filed a motion for attorneys‘ fees and costs. (Doc. 29). In the motion, Mr. Siegelman maintains that initiating this litigation caused OPR to release “factual portions of the ROI [that] would have remained forever secret…." (Doc. 30, p. 5). In its opposition to Mr. Siegelman‘s fee motion, OPR argues that Mr. Siegelman is ineligible for fees under FOIA and that, even if he is eligible, he is not entitled to fees. (Doc. 32, pp. 10-19). OPR also asserts that the fee award Mr. Siegelman requests is unreasonable. (Doc. 32, pp. 20-31).

         II. LEGAL STANDARD FOR FOIA ATTORNEYS' FEE CLAIMS

         The fee-shifting provision of FOIA states that a “court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i).

         Courts use a two-part framework to determine whether an award of attorneys‘ fees and costs is appropriate. Abernethy v. I.R.S., 909 F.Supp. 1562, 1567-68 (N.D.Ga. 1995), aff'd, 108 F.3d 343 (11th Cir. 1997); Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011). First, a court must determine whether the FOIA complainant is “eligible” for a fee award. To be eligible, the complainant must have “substantially prevailed" in the FOIA action. 5 U.S.C. § 552(a)(4)(E). A complainant substantially prevails when he obtains relief via “(I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant‘s claim is not insubstantial." 5 U.S.C. § 552(a)(4)(E).

         If a court determines that a claimant is eligible for an award of attorneys‘ fees, then the court must decide whether the claimant is entitled to such an award. Lovell v. Alderete, 630 F.2d 428, 431 (5th Cir. 1980) (“Once a plaintiff has substantially prevailed and thus become eligible for an award of attorney‘s fees, a court should determine whether the plaintiff is entitled to the award in light of [four] criteria . . .”);^[3] Brayton, 641 F.3d at 524 (if a court determines that a plaintiff “substantially prevailed," then “the court proceeds to the entitlement prong and considers a variety of factors to determine whether the plaintiff should receive fees.") (emphasis in Brayton) (citation omitted). To determine whether a plaintiff is entitled to fees and costs under FOIA, a court considers 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 agency‘s withholding of the requested documents. Chilivis v. S.E.C., 673 F.2d 1205, 1212 n.16 (11th Cir. 1982); Lovell, 630 F.2d at 431-32. A court “may consider any relevant equitable factors that may affect its balancing" of the criteria, and a court must evaluate the criteria “in light of the fundamental legislative policies underlying" FOIA. Lovell, 630 F.2d at 431; see Nix v. United States, 572 F.2d 998, 1007 (4th Cir. 1978) (“[A]n award of attorney‘s fees is not automatic, but is to be made where doing so will encourage fulfillment of the purposes of FOIA.").

         If a court determines that a party is both eligible and entitled to receive fees, then the party “must submit his fee bill to the court for its scrutiny of the reasonableness of (a) the number of hours expended and (b) the hourly fee claimed." Long v. U.S. I.R.S., 932 F.2d 1309, 1313-14 (9th Cir. 1991); Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363 (D.C. Cir. 2006) (explaining that district courts retain the discretion to modify a fee award based on the reasonableness of the request and the particular facts of the case); see also Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (“Occasionally, evidentiary hearings are necessary" when district courts evaluate the reasonableness of attorneys‘ fees.).^[4] If the rate applied and total hours are reasonable in light of the difficulty of the case and the skill of the attorneys involved, then there is a “strong presumption" that the claimed fee “represents a reasonable award." Long, 932 F.2d at 1314. A district court awarding fees and costs “should provide a detailed account of how it arrive[d] at appropriate figures for the number of hours reasonably expended and a reasonable hourly rate." Long, 932 F.32d at 1314 (internal quotations omitted).

         III. ANALYSIS

         A. Eligibility

         Mr. Siegelman asserts that he is eligible for an award of attorneys‘ fees because the Court conducted an in camera review and subsequently issued a show cause order that led OPR to release 34 redacted pages of the ROI. (Doc. 30, p. 5). OPR argues that Mr. Siegelman is not eligible for an award of attorney‘s fees because there is no court order constituting judicial relief, and the release of only 34 pages is insubstantial. (Doc. 32, pp. 10-11).

         Although OPR correctly asserts that the Court did not unconditionally order the release of the 34 redacted pages of the ROI, OPR‘s argument is based on a snapshot taken from the claimant‘s protracted effort to obtain the ROI and this Court‘s orders relating to that effort. When Mr. Siegelman first requested the ROI in June of 2015, within one week, OPR notified Mr. Siegelman of its decision to withhold the ROI in its entirety. When Mr. Siegelman appealed OPR‘s decision administratively, OIP affirmed OPR‘s decision to withhold the ROI in its entirety pursuant to three FOIA exemptions. After Mr. Siegelman filed this lawsuit, on July 26, 2016 (more than one year after Mr. Siegelman requested the ROI), OPR, having made “a line-by-line segregability analysis of the ROI," voluntarily produced to Mr. Siegelman three pages from the ROI consisting of the title page and OPR‘s analytical framework. After evaluating the declaration that OPR presented in support of its decision to release only three pages of the ROI, the Court likewise made a line-by-line segregability analysis of the ROI and issued a five-page order detailing the information in the ROI that was not subject to the exemptions on which OPR based its decision to withhold everything other than the title page and OPR‘s analytical framework. The Court ordered OPR “to SHOW CAUSE by February 23, 2018 why the portions of the report identified above are subject to the FOIA exemptions claimed and cannot be segregated and produced, or to produce those portions of the report to the plaintiff." (Doc. 26, p. 5). Nearly three years after Mr. Siegelman requested the ROI, OPR produced 34 redacted pages to Mr. Siegelman on February 23, 2018. (Doc. 26, p. 5; Doc. 27).

         On this record, the absence of an unconditional order does not render Mr. Siegelman ineligible for an award of fees. In a decision on which the Court of Appeals relied in Lovell, the ...