United States District Court, N.D. Alabama, Southern Division
MADELINE HUGHES HAIKALAUNITED STATES DISTRICT JUDGE
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. 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).
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.
FACTUAL BACKGROUND AND PROCEDURAL
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, ¶
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).
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,
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).
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).
LEGAL STANDARD FOR FOIA ATTORNEYS' FEE CLAIMS
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).
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).
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 . .
.”); 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.").
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.). 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
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).
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).
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