DOJ Reports on Attorney Fee Awards in FOIA Litigation Inaccurate
(19 Dec 2018) Despite the congressional mandate requiring reporting of the amount of attorney fee and cost awards in each FOIA lawsuit, the Department of Justice has failed to take its responsibilities seriously and institute the necessary recording procedures needed to accurately track these awards. Results of a survey of 42 attorneys conducted by the FOIA Project during the summer of 2018 turned up a 22 percent underreporting rate in the number of cases that the DOJ had reported having fee awards in 2016. This figure likely underestimates the degree of underreporting since the survey was not comprehensive and many attorneys were not covered in the survey.

However, attorneys reported going to court is costly. No matter how simple the case. To gain a better picture of the process of seeking and negotiating fee awards in FOIA cases, the FOIA Project conducted further phone interviews with 22 attorneys in October 2018. All the attorneys interviewed by the FOIA Project stated that the fees and costs recovered from federal agencies in FOIA lawsuits were generally a fraction of the actual cost. This was confirmed by the size of awards. Most attorney awards were under $10,000. But there were exceptions. The payment of attorney fees and costs amounted to $100,000 or more in at least five cases in 2016

The majority of attorneys interviewed reached settlements with federal agencies, and agreed to fee awards as part of larger settlement negotiations. For some lawyers, fee awards were on the table as negotiating chips. A few attorneys interviewed escalated beyond settlement negotiations and filed petitions in court seeking fee awards. One attorney interviewed noted the government was responding more negatively to fee award requests in the past two years.

FOIA provides for fee awards to plaintiffs that substantially prevail. In the OPEN Government Act of 2007 Congress expanded the coverage of the attorney fees provision in FOIA to include circumstances where the plaintiff obtained relief by court order or a voluntary or unilateral change in the agency position, providing that the claim was not insubstantial. Even with the 2007 amendments, however, fee awards are by no means routine.

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