PRM moves for fees in DOJ lawsuit

Posted by Matt Ehling

PRM’s litigation against the U.S. Department of Justice (DOJ) has entered its final stage. On October 30th, Public Record Media filed a motion to seek an award of fees stemming from its FOIA suit related to the potential use of UAV drones on the domestic front.

One year ago, PRM filed a Freedom of Information Act request with the DOJ’s Office of Legal Counsel (OLC) to seek three categories of documents about the use of force by UAVs – both at home and abroad. In a response letter dated November 3, 2011, the OLC denied access to all categories of documents (items 1-3 in our initial request). Regarding the first category, (legal opinions about the use of lethal force against a U.S. citizen in Yemen) the OLC stated:

“The Office of Legal Counsel neither confirms nor denies the existence of documents responsive to this item.”

Regarding the two remaining categories of documents (items 2 and 3), the OLC letter went on to state that:

“We have identified several documents responsive to the remaining items in your request. We are withholding these documents pursuant to FOIA Exemptions [One … Three … and Five.]”

These two discreet categories related to the use of lethal force by UAVs against U.S. persons outside of the U.S., and the use of lethal force by UAVs against any person inside the U.S. The standard rules of grammatical construction led us to conclude that documents relating to both remaining items existed, and were being withheld in their entirety.

In addition, our previous experience with FOIA requests (including a 2010 request from the OLC) indicated that when a request sought non-existent records, the agency would detail the fact of that non-existence fact in its response letter. Likewise, all agencies that we’d dealt with previously provided item-by-item answers when responding to multi-item FOIA requests.

Lawsuit commences

We initiated litigation against DOJ nearly eight months after we filed our FOIA request, and sought to contest the withholding of documents responsive to the final category of records (“Item 3”). Prior to that, we had submitted an administrative appeal to the DOJ’s Office of Information Policy (OIP) in order to appeal the OLC’s withholding of our requested documents. This did not prove to be fruitful, however. First, the OIP claimed to have lost our appeal internally, which we only discovered by calling them after three months without receiving a response. Then, OIP once again failed to respond to us within the statutory time frame after receiving the appeal a second time.

After litigation commenced, DOJ began to hint that they didn’t actually have the documents that we were suing to obtain. They hinted obliquely at first, and their trial counsel told us that our case was being treated “differently” from the other drone/FOIA lawsuits that were in federal court at the time. Then, DOJ became explicit, and OLC sent us a letter stating that they did not, in fact, possess Item 3 documents. OLC also stated that language in its November 3rd letter referring to “the remaining items in (our) request” only referred to Item 2 documents “broadly construed,” rather than the Item 3 documents we were suing to obtain.

We kept the litigation going, assuming that DOJ would need to file declarations along with its summary judgment motion, and that we would subsequently learn more about its “no records” claims. DOJ did this on September 21, 2012. The ten-page Declaration of John Bies discussed OLC’s search methodology, and further elaborated on DOJ’s claims about having no records. For reasons that will form a future post, we decided to move to dismiss the suit, and DOJ formally agreed to the dismissal on October 18th.

PRM seeks fees

The remaining issue to be decided is one of attorney’s fees. In FOIA litigation, a party that substantially prevails under the terms of the FOIA is eligible for an award of attorney’s fees. Per the FOIA, “substantially prevailing” can involve satisfying one of four criteria – one of which is causing a change in position by the other party through litigation. In many past FOIA cases, such a change has resulted from an agency producing records after denying those records to a plaintiff. Here, the defendant agency has changed its position from representing that it has records, to not having them.

DOJ claims that their initial representation and later representation regarding Item 3 records are consistent. We believe that this is not the case, and that our litigation caused them to alter the substance of their initial response. As such, we believe that we have substantially prevailed, and are eligible for fees.

As we discussed at length in our memo to the Court, we also believe that an award of fees would fulfill a public policy goal of the FOIA. Government agencies should not be free to respond to FOIA requests in obtuse or misleading ways, and then offer contradictory representations later on. An award of fees could help to curtail future behavior of this kind.

The Department of Justice has until November 30th to respond to our motion.

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Matt Ehling

Public Record Media