Davy v. Central Intelligence Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2008 Decided December 19, 2008

No. 07-5200

WILLIAM A. DAVY, JR.,

APPELLANT

v.

CENTRAL INTELLIGENCE AGENCY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 00cv02134)

James H. Lesar argued the cause and filed the briefs for

appellant.

Meredith Fuchs, Lucy A. Dalglish, and Gregg P. Leslie

were on the brief for amicus curiae Reporters Committee for

Freedom of the Press in support of appellant.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellee. With him on the brief were Jeffrey A. Taylor, U.S.

Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Charlotte A. Abel, Assistant U.S. Attorney, entered an

appearance.

2

Before: ROGERS and TATEL, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Circuit Judge TATEL.

Dissenting opinion by Senior Circuit Judge RANDOLPH.

ROGERS, Circuit Judge: This is the second time William

Davy has appealed the denial of his request for an award of

attorney’s fees and costs under the Freedom of Information Act

(“FOIA”). Davy first appealed the district court’s finding that

he was ineligible, and this court reversed, holding that he was

eligible as a prevailing party and remanding the case for the

district court to determine whether Davy was entitled to fees

upon applying a familiar four-factor test. Davy v. CIA (“Davy

I”), 456 F.3d 162 (D.C. Cir. 2006). On remand the district court

again denied fees. This court must reverse and remand again.

Because the district court’s findings on some factors are

unsupported by the record, and the record indicates that Davy is

the quintessential requestor of government information

envisioned by FOIA, he is entitled to an award of fees and costs,

and upon remand the district court shall enter an appropriate

order.

I.

The details of Davy’s two FOIA requests are set forth in

Davy I. Suffice it to say, in 1999, six years after Davy, acting

pro se, filed his first FOIA request, the agency responded by

refusing disclosure, stating that it could neither confirm nor deny

the existence of responsive records due to national security

reasons, citing FOIA exemptions (1) and (3). 456 F.3d at 163.

Davy obtained a lawyer but no relief by administrative appeal

3

and filed suit against the agency. The district court dismissed

his complaint with leave to amend on the ground that it was

based on a FOIA request made in 1993 and so was untimely.

Davy then filed a second FOIA request in November 2000,

renewing his initial request and seeking additional documents.

In December 2000, having received no response from the

agency, Davy amended his complaint to focus on his second

FOIA request. On May 4, 2001, the district court entered an

order adopting the parties’ agreement on a schedule for the

agency to produce documents pursuant to Davy’s second FOIA

request. Thereafter the agency produced on schedule some

documents but not others and moved for summary judgment.

Davy also moved for summary judgment. After the agency filed

a superseding motion for summary judgment, the district court

granted the agency’s motion.

Davy thereafter timely filed a motion for attorney’s fees

under 5 U.S.C. § 552(a)(4)(E),1 which the district court denied.

On appeal, this court held that Davy had substantially prevailed

and was therefore eligible for fees and remanded the case so that

the district court could, in the first instance, apply a four-factor

test for determining entitlement. Davy I, 456 F.3d at 166-67.

Davy now appeals the district court’s finding on remand that he

was not entitled to an award of fees. Our review of the district

court’s application of the four-factor test is for abuse of

discretion. Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092,

1094 (D.C. Cir. 1992); see generally Kickapoo Tribe v. Babbitt,

43 F.3d 1491, 1497 (D.C. Cir. 1995).

1

Under FOIA, “[t]he 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).

4

II.

This court, drawing on the Senate and House Committee

reports for FOIA and its amendments,2 explained long ago that

the provision for attorney’s fees “was not enacted to provide a

reward for any litigant who successfully forces the government

to disclose information it wished to withhold,” but instead “had

a more limited purpose — to remove the incentive for

administrative resistence to disclosure requests based not on the

merits of exemption claims, but on the knowledge that many

FOIA plaintiffs do not have the financial resources or economic

incentives to pursue their requests through expensive litigation.”

Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711

(D.C. Cir. 1977) (citing S. REP. NO. 93-854, at 17). The court

embraced the view that a distinction is to be drawn between the

plaintiff who seeks to advance his private commercial interests

and thus needs no incentive to file suit, and a newsman who

seeks information to be used in a publication or the public

interest group seeking information to further a project

benefitting the general public. Id. at 712-13 (quoting S. REP.

NO. 93-854, at 19). The court observed in conclusion that:

The touchstone of a court’s discretionary decision

under section 552(a)(4)(E) must be whether an award

of attorney fees is necessary to implement the FOIA.

A grudging application of this provision, which would

dissuade those who have been denied information from

invoking their right to judicial review, would be clearly

contrary to congressional intent.

2

See S. REP. NO. 93-854, at 17-20 (1974), reprinted in H.

COMM. ON GOV’T OPERATIONS, S. COMM. ON JUDICIARY, 94TH CONG.,

FREEDOM OF INFORMATION ACT AND AMENDMENTS OF 1974, SOURCE

BOOK II 151, 169-72 (1975).

5

Id. at 715; see also LaSalle Extension Univ. v. FTC, 627 F.2d

481, 484 (D.C. Cir. 1980).

With this understanding, the court has directed the district

court to consider at least four criteria in determining whether a

substantially prevailing FOIA litigant is entitled to attorney’s

fees: (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. Tax

Analysts, 965 F.2d at 1093-94; see also S. REP. NO. 93-854 at

19. No one factor is dispositive, although the court will not

assess fees when the agency has demonstrated that it had a

lawful right to withhold disclosure. See Chesapeake Bay Found.

v. USDA (“Chesapeake I”), 11 F.3d 211, 216 (D.C. Cir. 1993),

abrogated in part on other grounds by Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep’t of Health & Human Resources, 532

U.S. 598, 601-02 (2001).

The first factor assesses “the public benefit derived from the

case,” Tax Analysts, 965 F.2d at 1093, and requires

consideration of both the effect of the litigation for which fees

are requested and the potential public value of the information

sought, see Chesapeake Bay Found. v. USDA (“Chesapeake II”),

108 F.3d 375, 377 (D.C. Cir. 1997); Cotton v. Heyman, 63 F.3d

1115, 1120 (D.C. Cir. 1995); Tax Analysts, 965 F.2d at 1093-94.

The district court found that “Davy’s FOIA request and

subsequent litigation were intended to compel disclosure of

information relating to the activities of a government agency

(the CIA) in relation to a significant historical event,” and thus

that this factor favors Davy. There can be little question that

this factor favors Davy.

The information Davy requested — about individuals

allegedly involved in President Kennedy’s assassination —

6

serves a public benefit. See, e.g., Allen v. CIA, 636 F.2d 1287,

1300 (D.C. Cir. 1980), overruled on other grounds by Founding

Church of Scientology v. Smith, 721 F.2d 828, 830 (D.C. Cir.

1983). At least one of the requested documents was not

previously available to the public, and the agency did not

challenge Davy’s description of the released documents as

providing “important new information bearing on the

controversy over former [District Attorney Jim] Garrison’s

contention that the CIA was involved” in the assassination plot.

Davy Decl. ¶ 2. Nothing in the record indicates that the

releases, which occurred only after the May 4, 2001 order of the

district court, were not a fruit of Davy’s litigation; despite

Davy’s second FOIA request, the agency did not turn over any

documents to him until after he filed suit. As this court stated in

Davy I, it was the district court’s disclosure-schedule order that

“provide[d] Davy with the precise relief his request sought.”

456 F.3d at 165.

The agency’s position — that the district court erred by

failing to focus on the value of the litigation — presents a

variation on its position, rejected in Davy I, that Davy did not

“substantially prevail” in his litigation and so was not eligible

for fees. Davy I, 456 F.3d at 166. Because nothing in the record

indicates that Davy would have received the information without

filing suit, the district court’s consideration of the value of the

information sought necessarily entailed consideration of the

value of the litigation that led to the disclosure of that

information. The cases on which the agency relies are

inapposite, involving a pre-litigation offer of release in

Chesapeake II, 108 F.3d at 377, or litigation that produced only

faster disclosure of publicly available information in Tax

Analysts, 965 F.2d at 1094, or establishment of a legal precedent

defining “public interest” in Cotton, 63 F.3d at 1120. The fact

that some of the material turned over to Davy concerns an event

of national importance and is newly released is a key distinction

7

between this case and the litigation at issue in Tax Analysts.

Although the district court’s determination that the first

factor weighed in Davy’s favor was not an abuse of discretion,

we reach a different conclusion regarding its determination of

the other factors. The second and third factors, which are often

considered together, assess whether a plaintiff has “sufficient

private incentive to seek disclosure” without attorney’s fees.

See Tax Analysts, 965 F.2d at 1095. The second factor considers

the commercial benefit to the plaintiff, while the third factor

considers the plaintiff’s interest in the records. Applying these

factors, the district court found that because the requested

documents were used to research a book that was later

published, albeit with “presumably . . . limited commercial

success,” “Davy’s interest in the records was clearly

commercial.” These findings are based on inappropriate

considerations and clearly erroneous findings of fact.

First, the mere intention to publish a book does not

necessarily mean that the nature of the plaintiff’s interest is

“purely commercial.” See S. REP. No. 93-854, at 19. Surely

every journalist or scholar may hope to earn a living plying his

or her trade, but that alone cannot be sufficient to preclude an

award of attorney’s fees under FOIA. “If newspapers and

television news shows had to show the absence of commercial

interests before they could win attorney’s fees in FOIA cases,

very few, if any, would ever prevail.” Tax Analysts, 965 F.2d at

1096. Yet their activities often aim to ferret out and make

public worthwhile, previously unknown government information

— precisely the activity that FOIA’s fees provision seeks to

promote. Furthermore, a conclusion that using information

obtained under FOIA in connection with research for purposes

of writing a book necessarily makes fees unavailable is

inconsistent with the distinction that underlies this court’s

analysis of the relevant factors. Cf. Nationwide, 559 F.2d at 713

8

(discussing Goldstein v. Levi, 415 F. Supp. 303, 305 (D.D.C.

1976)).

Essentially, the first three factors assist a court in

distinguishing between requesters who seek documents for

public informational purposes and those who seek documents

for private advantage. The former engage in the kind of

endeavor for which a public subsidy makes some sense, and

they typically need the fee incentive to pursue litigation; the

latter cannot deserve a subsidy as they benefit only themselves

and typically need no incentive to litigate. Thus, on the one

hand, the court has reversed an award of attorney’s fees where

the plaintiff was an attorney requesting information in

preparation of private litigation for a client, Cotton, 63 F.3d at

1120, and upheld a denial of fees where a nonprofit organization

was reprinting federal tax decisions in a newsletter sent to

paying subscribers, Tax Analysts, 965 F.2d at 1093. Although

Tax Analysts had a news interest, it simply sought “efficient,

easy access” to information that was already public, id. at 1095,

in order to make it available to its subscribers sooner, and the

court concluded that such a subscriber organization did “not

need the attorney’s fees incentive” to pursue litigation, id. at

1096. On the other hand, the court has long recognized that

“news interests,” regardless of private incentive, generally

“should not be considered commercial interests” for purposes of

the second factor, Tax Analysts, 965 F.2d at 1096; Fenster v.

Brown, 617 F.2d 740, 742 n.4 (D.C. Cir. 1979) (quoting S. REP.

NO. 93-854, at 19), and that “a court would generally award fees

if the complainant’s interest in the information sought was

scholarly or journalistic or public-interest oriented, [unless] . . .

his interest was of a frivolous or purely commercial nature,”

Fenster, 617 F.2d at 742 n.4 (quoting S. REP. NO. 93-854, at 19);

Tax Analysts, 965 F.2d at 1096.

Second, in finding that Davy’s interest was “purely

9

commercial, the district court relied exclusively on the fact that

Davy is the author of Let Justice Be Done, a book about the

investigation by New Orleans District Attorney Jim Garrison

and the trial of Clay Shaw for conspiracy to assassinate

President Kennedy. Yet this book was published in 1999, prior

to the release of documents by the agency. This alone suffices

to show that the district court abused its discretion. But even if

the district court had been correct about the book, such scholarly

interests are not “clearly commercial” under this circuit’s

precedents. Davy’s FOIA requests for information related to the

agency’s QKENCHANT and ZRCliff projects, which were

based on his interest in the agency’s alleged involvement in the

assassination, Davy I, 456 F.3d at 163, reflect more of a

scholarly than a disqualifying commercial interest. The record

indicates not only that Davy has also published magazine

articles on the assassination but that some of the information

released to him under FOIA had not previously been made

public. There is no suggestion in the record that his requests

were frivolous. In fact, Davy’s unchallenged declaration makes

clear the substantive value of the released documents and the

agency has not meaningfully argued otherwise even on appeal.

Additionally, Davy states in his sworn declarations that his

“primary motivation was to obtain records which would shed

light on [the Garrison] investigation, . . . and present an accurate

historical record regarding it,” and that his book made a

“miniscule” amount of money. Davy Supp. Decl. ¶ 4. Contrary

to the district court’s speculation and the agency’s suggestion

that because his book, out of print since 2004, was for sale on

Amazon.com he must be commercially profiting, Davy stated

that he received no money from such second-hand sales. Davy

Supp. Decl. ¶¶ 4-5. These are not the circumstances indicative

of private, self-interested motivation or commercial pecuniary

benefit that the court has recognized “will be sufficient to insure

the vindication of the rights given in the FOIA.” Fenster, 617

10

F.2d at 743 n.4 (quoting S. REP. NO. 93-854, at 19).

To the extent that Davy has a scholarly interest in

publishing publicly valuable information in a book, his interest

is at most “quasi-commercial,” Campbell v. U.S. Dep’t of

Justice, 164 F.3d 20, 36 (D.C. Cir. 1998). This alone is not

disqualifying as nothing in the record would suggest that his

private commercial interest outweighs his scholarly interest,

much less the public value in providing him an incentive to

ferret out and publish this information. See, e.g., Aronson v.

U.S. Dep’t of Hous. & Urban Dev., 866 F.2d 1, 3 (1st Cir.

1989). As the court observed in interpreting the FOIA provision

providing for waiver or reduction of copying fees, 5 U.S.C.

§ 552(a)(4)(A)(iii), “Congress did not intend for scholars (or

journalists and public interest groups) to forego compensation

when acting within the scope of their professional roles.”

Campbell, 164 F.3d at 35-36; see also Nat’l Treas. Employees

Union v. Griffin, 811 F.2d 644, 649 (D.C. Cir. 1987).

Furthermore, Davy sought the information not for its

republication value standing alone as in Tax Analysts, but in

relation to a larger work addressing an historical issue of

national importance.

Davy was thus much like a journalist who “gathers

information of potential interest to a segment of the public, uses

[his] editorial skills to turn the raw materials into a distinct

work, and distributes that work to an audience,” Tax Analysts,

965 F.2d at 1095, and as such is among those whom Congress

intended to be favorably treated under FOIA’s fee provision, id.

at 1096. He is at least the quintessential “average person,”

Cuneo v. Rumsfeld, 553 F.2d 1360, 1363-64 (D.C. Cir. 1977),

abrogated on other grounds by Kay v. Ehrler, 499 U.S. 432, 438

(1991), requesting information under FOIA about what the

government was up to that he intends to share with the public as

part of his scholarship or “news” gathering role rather than

11

merely to promote his private commercial interests. For the

reasons discussed and because the record provides no basis to

doubt that his purpose in filing the FOIA request and pursuing

litigation was to increase the public fund of knowledge about a

matter of public concern, the district court abused its discretion

in determinating that the second and third factors weighed

against Davy.3

3

Our dissenting colleague inappropriately shifts the focus

from the request’s topic and purpose to the specific content of the

released documents. The dissent ignores both Davy’s four-page sworn

description of the newly released information and its significance to

scholars in understanding events relating to the assassination of

President Kennedy, and the fact that the government never challenged

his description of the value of this information. Even on appeal the

agency never takes issue with the point-by-point substantive analysis

Davy presented, and instead asserts only that to be entitled to fees

Davy must show that “his current work [is] likely to have an impact

comparable to a widely circulated journal” or “significantly advances

the public understanding of an issue important to ‘making vital

political decisions,’ per Fenster,” Appellee’s Br. at 13. Putting aside

the fact that the court does not typically rehabilitate such an “asserted

but unanalyzed argument,” Duncan’s Point Lot Owners Ass’n v.

FERC, 522 F.3d 371, 377 (D.C. Cir. 2008), the agency points to no

authority nor rationale that conditions FOIA fee awards on circulation

data. Indeed, such a requirement would be counterproductive, both

because many requesters would be unable to provide publication data

in a timely filed fee request, and because shifting to the plaintiff the

risk that the disclosures will be unilluminating defeats the purpose of

the fee provision. Few people in Davy’s situation, for example, would

stake their financial resources on litigation when they can know

nothing about the documents or their contents prior to their release.

It would also be inconsistent with congressional intent to disqualify

plaintiffs who obtain information that, while arguably not of

immediate public interest, nevertheless enables further research

ultimately of great value and interest, such as here the public

understanding of a Presidential assassination. Understandably the

12

The fourth factor considers whether the agency’s opposition

to disclosure “had a reasonable basis in law,” Tax Analysts, 965

F.2d at 1096, and whether the agency “had not been recalcitrant

in its opposition to a valid claim or otherwise engaged in

obdurate behavior,” LaSalle Extension, 627 F.2d at 486; see

Fenster, 617 F.2d at 744. “If the Government’s position is

correct as a matter of law, that will be dispositive. If the

Government’s position is founded on a colorable basis in law,

that will be weighed along with other relevant considerations in

the entitlement calculus.” Chesapeake I, 11 F.3d at 216; see

Cotton, 63 F.3d at 1117; Nationwide, 559 F.2d at 712 n.34. The

district court found that “there is no basis to conclude that the

[a]gency unreasonably withheld these requested documents.”

But this analysis mistakenly shifts the burden to the requester.

The question is not whether Davy has affirmatively shown that

the agency was unreasonable, but rather whether the agency has

shown that it had any colorable or reasonable basis for not

disclosing the material until after Davy filed suit.

The agency did not reach an agreement to disclose the

requested documents until March 2001, after Davy filed his

lawsuit and four months after he filed his second FOIA request.

Davy observes on appeal that the agreement coincided with the

filing date for meet-and-confer statements under Local Rule 16

of the district court, and that it took more than a year for the

government does not suggest that Davy’s motivation for requesting

the documents is suspect, as it seems unlikely that he would, as the

dissent speculates, allow the information he has described as new and

significant to “gather[] dust in some corner of his closet,” Dis. Op. at

2, after pursuing its release for six years. Moreover, the dissent

appears to ignore, id., what long standing precedent makes clear, see

Nationwide, 559 F.2d at 715, quoted supra — any fee burden to be

borne by the public is a result of the government’s conduct, not the

plaintiff’s.

13

agency to process and release a moderate quantity of documents.

That aside, although the agency invoked FOIA Exemptions 1

and 3 when it finally responded to Davy’s first FOIA request, it

provided no such legal basis in response to Davy’s second FOIA

request. Failing to explain the basis for deferring its response to

his second request until after he filed suit is exactly the kind of

behavior the fee provision was enacted to combat. For the

agency to receive the benefit of the fourth factor it must present

at least a “colorable basis in law” for its failure to respond to

Davy’s second request, and it has not done so. See Nationwide,

559 F.2d at 712 n.34. It is not enough to say that “once the

[a]gency faced a justiciable FOIA claim, it offered no

resistance,” Appellee’s Br. at 19, because the agency did not

disclose the documents until after Davy had pursued litigation,

including filing a cross-motion for summary judgment and

negotiating a release schedule. Even on appeal the agency does

not suggest that the “information disclosed after initial

resistance was nonetheless exempt from the FOIA,” or that “it

had a reasonable basis in law for resisting disclosure.”

Nationwide, 559 F.2d at 712 n.34. If the government could

defeat an award of fees by citing a lack of resistance after the

requester files a lawsuit to obtain requested documents, then it

could force plaintiffs to bear the costs of litigation. Absent

evidence that the agency had a reasonable basis for failing to

respond to Davy’s second request, the district court abused its

discretion in determining that the fourth factor weighed in the

agency’s favor.

Accordingly, because the record reflects that he is the type

of requester Congress contemplated when it sought “to lower the

‘often . . . insurmountable barriers presented by court costs and

attorney fees to the average person requesting information under

the FOIA,’” Tax Analysts, 965 F.2d at 1095 (quoting Cuneo, 553

F.2d at 1363-64), and because no factor weighs in the agency’s

favor, a balancing of the factors can only support the conclusion

14

that Davy is entitled to an award of attorney’s fees.

Accordingly, we reverse and remand the case only for the

district court to enter an appropriate order awarding fees and

costs as to all matters on which Davy prevailed.

TATEL, Circuit Judge, concurring: Agreeing completely

with Judge Rogers’s application of our long-standing test for

FOIA fee eligibility, I join her opinion in full. I write only to

clarify a single point: that William Davy presents a

paradigmatic case for the award of attorney’s fees even if we

step back from the particulars of the test the dissent so

maligns and focus instead on FOIA’s purposes. While

recognizing the test as binding precedent, the dissent

nonetheless casts aspersions on Davy’s case and subjects it to

newly minted standards inconsistent with the very purpose of

FOIA’s fees provision. Indeed, because the barriers the

dissent would erect appear insuperable, I read it not as a

dissent from this Court’s opinion, but from Congress’s

decision to provide fees to prevailing FOIA requesters at all.

Begin with the first factor, which asks whether the FOIA

requester pursued the litigation in the public interest. Maj.

Op. 5. The purpose of this inquiry is obvious: Congress

meant to incentivize the pursuit of public informational

interests, not the mining of government records for private

advantage. E.g., Tax Analysts v. U.S. Dep’t of Justice, 965

F.2d 1092, 1095 (D.C. Cir. 1992). But the dissent would

ignore the purpose of the document request and ensuing

litigation, focusing instead on whether the particular records

released would be interesting to the public or would instead

be greeted with “a yawn.” Dis. Op. 2. As the facts of this

very case demonstrate, however, assessing the content of the

specific documents disclosed rather than the reasons they

were requested makes little sense. Before suing, requesters in

Davy’s position have no idea what documents responsive to

their FOIA requests might contain because the agency has

told them nothing—here, it never even gave Davy a Vaughn

index. In fact, Davy knew only that his request implicated

matters of such enormous national concern that the CIA at

first expressly refused to either confirm or deny the existence

of responsive records. So Davy went to court seeking more

information, exactly as Congress intended. Indeed, Congress

2

created a fees incentive precisely so that people in Davy’s

situation would sue where, as here, the agency digs in. Maj.

Op. 4; see also Nationwide Bldg. Maint., Inc. v. Sampson, 559

F.2d 704, 715 (D.C. Cir. 1977) (“A grudging application of

this [fees] provision, which would dissuade those who have

been denied information from invoking their right to judicial

review, would be clearly contrary to congressional intent.”).

The dissent would force requesters to bear the risk that the

revealed documents might ultimately be boring, but since no

one in Davy’s position can know before suing what the

requested documents say or even whether they exist, the

dissent’s rule would in fact chill all FOIA suits, preventing

the discovery of important and unimportant content alike. So

long as the information sought was of a type the public might

want to know, we should consider the objective underlying

this element of our test met. Davy’s suit sought records

regarding the assassination of an American president; we need

know nothing more to find that the first factor favors him.

The dissent disagrees with this view of both the law and

the facts. As to the law, the dissent argues that a FOIA

request’s purpose is irrelevant, Dis. Op. 3, citing our standard

in Cotton v. Heyman, 63 F.3d 1115 (D.C. Cir. 1995), which

asks whether a request “is likely to add to the fund of

information that citizens may use in making vital political

choices,” id. at 1120 (internal quotation marks omitted). This

argument founders on Cotton itself, which in fact applied its

standard by looking to the purpose behind the FOIA request:

In this case, no evidence exists that the release

of the two non-exempt documents will

contribute to the public’s ability to make vital

political choices. Plaintiff does not even argue

this point. Rather, she sought these documents

3

for the sole purpose of facilitating her

employment discrimination suit.

63 F.3d at 1120 (emphasis added). As to the facts, the dissent

disagrees with my representation of Davy’s request as one

seeking records related to the assassination of President

Kennedy. Dis. Op. 3. Of course, this isn’t my representation,

it’s the district court’s, see Davy v. CIA, 496 F. Supp. 2d 36,

38 (D.D.C. 2007) (“Davy’s FOIA request and subsequent

litigation were intended to compel disclosure of information

relating to the activities of a government agency (the CIA) in

relation to a significant historical event . . . .”), and the dissent

never so much as mentions the deference we owe that finding.

But even so, Davy’s request clearly did relate to the Kennedy

assassination; as the dissent itself observes, “[m]uch of what

Davy obtained was already in the public domain, released

under the John F. Kennedy Assassination Records Collection

Act.” Dis. Op. 1 (emphasis added).

This brings us to the second and third factors, which

inquire into the nature of the requester’s interest in the records

and whether the requester can be expected to benefit

commercially from obtaining the documents. Maj. Op. 6-7.

The reason for these inquiries is obvious as well: Congress

did not intend to subsidize those who stand to profit from

pursuing litigation and so need no subsidy. See, e.g., Cuneo

v. Rumsfeld, 553 F.2d 1360, 1367 (D.C. Cir. 1977) (“If the

potential for private commercial benefit was sufficient

incentive to encourage [plaintiff] to pursue his FOIA claim,

the policy objectives of section 552(a)(4)(E) would be met

and it would not be improper for the trial court to deny his

request for attorney fees.”), abrogated on other grounds by

Kay v. Ehrler, 499 U.S. 432, 438 (1991). The dissent’s

dismissive aside about whether Davy should qualify as a

“journalist” under these elements of the test is thus a red

4

herring. Nothing in the record suggests that Davy’s persistent

interest in the Kennedy assassination was ever likely to earn

him any pecuniary gain. To the contrary, uncontroverted

record evidence demonstrates that absent the promise of fees,

Davy lacked both the incentive and the ability to pursue his

request through litigation. These factors thus favor him

regardless of his scholarly or journalistic credentials.

That said, it is worth pausing to consider why we ask

whether a requester pursues information in a journalistic

capacity. Scholars, authors, and journalists straddle the

incentive inquiry framed by the first three factors of the

entitlement test. Always searching for information that the

public will want to consume, journalists must surely be

thought of as pursuing records in the public interest. At the

same time, because they have a strong profit motive in that

pursuit, they need fees less than most. Echoing the judgment

of Congress as expressed in the legislative history, we have

long resolved the tension by considering scholarly or

journalistic interests to be public rather than private. See Maj.

Op. 7, 9-10 (collecting authorities). The dissent faults that

judgment, but in reality, it cannot itself decide which side of

the debate to join. In one breath it decries awarding fees to

large media organizations that profit from obtaining and

reselling information, Dis. Op. 1 & n.1; in the next it faults

Davy for his inability to prove that he had already revealed

the information he obtained to the public, hypothesizing that

the records went straight from some government file cabinet

to Davy’s closet, id. at 2. Of course, the only kinds of FOIA

requesters who can prove that they almost immediately

circulate the information they obtain belong to “the group that

is in the business of profiting from the information when it

winds up in their newspapers and magazines and TV shows.”

Id. at 1 n.1. So in the dissent’s world no one can obtain fees:

journalists circulate their information too successfully and so

5

are excluded, while independent scholars such as Davy fail to

circulate their information quickly or widely enough.

This Catch-22 is completely at odds with the intent of

Congress’s fees provision. Scholars like Davy often lack

resources and need more time to research their work. No

single FOIA request is likely to produce the smoking gun that

independently verifies their complicated hypothesis or grabs

the public’s attention. That the requester wisely waits to

evaluate and synthesize released records before broadcasting

information to the public in no way undermines the fact that

the records were sought in the public interest by an individual

without adequate ability or incentive to sue.

A brief word on the entitlement test’s final element,

which serves a different purpose from the first three. Asking

whether the government had a reasonable basis for

withholding documents, this fourth factor is intended to

disincentivize requesters from complaining about reasonable

withholdings while incentivizing the government to promptly

turn over—before litigation is required—any documents that

it ought not withhold. That purpose will be ill-served if the

government can prevail on this factor by saying nothing and

forcing the requester to sue, only then to offer “no resistance,”

Appellant’s Br. 19, as it did here. As we explained in

Nationwide, 559 F.2d at 710, “[i]f the government could

avoid liability for fees merely by conceding the cases before

final judgment, the impact of the fee provision would be

greatly reduced.” Were that so, “[t]he government would

remain free to assert boilerplate defenses, and private parties

who served the public interest by enforcing the Act’s

mandates would be deprived of compensation for the

undertaking.” Id. That is why we consider plaintiffs to have

substantially prevailed if they win a stipulated release, and

that is why the government’s argument is essentially

6

foreclosed by Davy’s victory in his first appeal. See Davy v.

CIA, 456 F.3d 162 (D.C. Cir. 2006).

In short, our four-factor test is a heuristic, a somewhat

crude mechanism for testing whether fees in a particular case

are consistent with the purposes for which Congress

subsidized FOIA litigation. We hardly need such a divining

rod for Davy, whose entitlement to fees is clear as day. The

dissent accuses us of rendering the test “more senseless,” Dis.

Op. 1, yet it is the dissent’s requirements that would divorce

the test from the ends Congress intended FOIA fees to serve.

RANDOLPH, Senior Circuit Judge, dissenting: Precedent

forces the majority to apply a longstanding test for determining

whether to award attorney’s fees. It is time to recognize that this

test is a legal relic. It is derived not from the statute but from

statements in committee reports, it is inconsistent with now-

settled FOIA law that the identity of the requester is irrelevant,

see, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149

(1975); Sterling Drug, Inc. v. FTC, 450 F.2d 698, 705 (D.C. Cir.

1971), and it draws an irrational line between news

organizations and other commercial and non-commercial

businesses and individuals.1 Although stare decisis commands

us to use the test, it does not command us to render it even more

senseless than it already is.

The majority holds that Davy should be treated as a

journalist and is entitled to attorney’s fees because he provided

a public benefit by gathering valuable information through this

lawsuit. This is unsupported and unsupportable. Davy wrote a

book a few years before the government complied with his

FOIA request. I do not know if that makes him a “journalist.”

I cannot see why that should matter in any event. Davy

provided nothing to show that the information he sought and

received was valuable or important. The majority is incorrect in

stating that the government conceded otherwise. See Gov’t Br.

at 11. Much of what Davy obtained was already in the public

domain, released under the John F. Kennedy Assassination

Records Collection Act of 1992, Pub. L. No. 102-526, 106 Stat.

3443. No one can say why the relatively few newly released

documents Davy obtained benefitted the public in any way.

Davy asserts that new information came to light, but this

consisted of the names of people who had obtained a clearance

for classified material or the code names of already-known

1

If there is any group that does not need an extra incentive –

in the form of attorney’s fees – to bring FOIA cases, it is the group

that is in the business of profiting from the information when it winds

up in their newspapers and magazines and TV shows.

2

people and enterprises. See Davy Decl. ¶¶ 1–3. This is the kind

of data the populace would greet with a yawn. It surely does not

amount to “information that citizens may use in making vital

political choices.” Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C.

Cir. 1995). Davy may think the public profited from his efforts,

but he has never said why.

Even if his documents amounted to anything, Davy

failed to show that “the public” – whoever that might be – was

somehow better off as a result of his FOIA request. Davy

obtained the documents in 2001, two years after his book was

published. He submitted no evidence that he showed the

documents to anyone else (other than his lawyer and the court)

or that he posted them online or that he published anything

about them or that he plans to do so in the future. For all we

know the documents are gathering dust in the corner of his

closet. Tax Analysts stressed that the very small circulation of

a publication was a reason for denying fees, see Tax Analysts v.

Dep't of Justice, 965 F.2d 1092, 1094 (D.C. Cir. 1992), and

several of our cases have rejected fee requests when the

requested information was not widely disseminated to the

public, see Cotton, 63 F.3d at 1120; Fenster v. Brown, 617 F.2d

740, 744 (D.C. Cir. 1979).

In short, Davy did not even come close to satisfying his

burden of showing that his lawsuit produced something of value.

See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Anderson

v. HHS, 80 F.3d 1500, 1504 (10th Cir. 1994). For that reason the

public should not have to foot the bill for his litigation costs.

I will end with a few words about the concurring opinion.

Judge Tatel says that what matters in terms of public benefit are

“the reasons [the documents] were requested.” Op. of Judge

Tatel 1. He caps this off by telling us that Davy “sought records

regarding the assassination of an American president.” Id. at 2.

3

Judge Tatel’s first proposition misstates the law; his second

misstates the facts. As I have already said, the law of the circuit

is clear: the public benefit criterion favors awarding fees only

when “the complainant’s victory is likely to add to the fund of

information that citizens may use in making vital political

choices.” Cotton, 63 F.3d at 1120. Nothing in that formulation

turns on the requester’s motives in seeking the documents.

Rather, a court must “evaluate the specific documents at issue in

the case at hand,” id., and determine whether the public actually

benefitted from the FOIA litigation. Chesapeake Bay Found.,

Inc. v. Dep’t of Agric., 108 F.3d 375, 377 (D.C. Cir. 1997). As

to the facts, Davy did not seek records relating to the

assassination of President Kennedy, as Judge Tatel represents.

Davy requested files relating to a program involving background

checks and a CIA-operated airline. There is nothing to connect

any newly released information to the Kennedy assassination.

Maybe Davy imagined some connection. But it had not occurred

to me that the taxpayers ought to be subsidizing someone who is

pursuing a figment.