Posted by Matt Ehling
On November 30, 2012, the Department of Justice (DOJ) submitted its memo in opposition to an October 30th memorandum in support of Public Record Media’s motion for fees. PRM is seeking fees in its recent litigation over legal opinions pertaining to UAV drones. The suit was dismissed on October 26, 2012 through the joint stipulation of both parties.
PRM had sued to obtain legal opinions regarding the potential use of lethal force by UAV drones within the United States. Two months after litigation began, DOJ indicated that it did not have such opinions, and submitted a declaration to that effect in September of 2012. After the submission of the declaration, PRM sought to end the litigation.
Language central to fee question
PRM and DOJ disagree about whether the agency’s initial response to PRM’s FOIA request and its later representation that it did not have responsive documents were substantively different. The answer to that question is at the heart of the dispute over the awarding of fees.
PRM maintains that it is eligible for fees since its lawsuit caused DOJ to change its position regarding the category of records in question. In November of 2011, DOJ responded to our FOIA request that sought three categories of documents by refusing to “confirm or deny” the existence of the first category of documents, and then noting that it had identified “several documents responsive to the remaining items” in our request. PRM sought the third category of records (“Item 3”) through an administrative appeal, and later sued for those same documents after DOJ did not substantively respond to two separate appeal submissions.
After litigation commenced, DOJ then stated that it did not have documents responsive to Item 3 of our request – only documents responsive to Item 2, which we were not suing to obtain. By letter dated August 3rd, DOJ stated that the language of its initial response referred only to Item 2 documents “broadly construed,” rather than to Item 3 documents as well. DOJ later noted that it did not possess Item 3 documents in a September declaration. PRM believes that the agency’s post-litigation representations are distinct, rather than merely re-statements of its pre-litigation position.
Per the terms of the FOIA, a voluntary change in position brought about by litigation means that a plaintiff has “substantially prevailed” and is thus eligible to receive fees in connection with its lawsuit. Case law has held that a plaintiff does not need to prevail on the merits of a case in order to “substantially prevail”
DOJ maintains that its representations have been consistent, and that PRM’s litigation has not caused it to change positions. As such, it holds that the PRM is ineligible for a fee award. DOJ also takes issue with the amount of fees sought by PRM.