The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRIC'I` OF COLUMBIA
JEFFERSON MORLEY )
)
Plaintiff, )
)
v. ) Case No. 03-cv-2545 (RJL)
)
CENTRAL INTELLIGENCE )
AGENCY, ) FI_ LED
)
Defendant. ) MAR 2 g 2017
Clerk, U,S. D|strlct & Ball
Courts for the Dlstrlct of Co}umb|g
MEMORANDUM OPINION
(March g 2017) [Dkt. #156]
Plaintiff Jefferson Morley brings this action to recover attorney’s fees and costs
from the Central lntelligence Agency (“CIA”) under the Freedom of Information Act
(“FOIA”). The matter is before the Court on remand from our Circuit With instructions to
consider, as part of the usual four-factor test for granting attorney’s fees, the public
benefit that Morley’s FOIA request Was likely to have When he made it. See Morley v.
CIA, 810 F.3d 841, 845 (D.C. Cir. 2016). The parties have briefed this revised version of
the four-factor standard [Dkts. #156, #159, #163]. After review of the briefs, and
Weighing the likely public benefit of Morley’s FOIA request against the other three
factors, plaintiff’s motion for attorney’s fees is once again DENIED.
BACKGROUND
This request for attorney’s fees is back from the Circuit for a second time. The
specific facts relevant to plaintiffs fee request are detailed in Morley v. CIA, 828 F.
Supp. 2d 257 (D.D.C. 2011) (“MorleyII/”), vacated, 719 F.3d 689 (D.C. Cir. 2013)
(“Morley V”) and briefly summarized in Morley v. CIA, 59 F. Supp. 3d 151 (D.D.C.
2014) (“Morley VI”), vacated, 810 F.3d 841 (D.C. Cir. 2016) (“Morley VII”). 1 quote
directly from that brief summary, eliminating all citations, now:
Morley is a journalist and news editor. On July 4, 2003, Morley submitted
a request under FOIA to the CIA for “all records pertaining to CIA
operations officer George Efythron Joannides.” The letter makes clear that
Morley sought information connected to President John F. Kennedy’s
assassination The CIA responded in the beginning of November, 2003,
with a letter explaining that the National Archives and Records
Administration (“NARA”) had a public collection of CIA records related
to the JFK assassination, which was searchable online. The CIA directed
him to submit his request to NARA and did not release any records directly
to Morley at that time.
Morley subsequently filed suit in this Court on December 16, 2003, to
enforce his FOIA request. After further processing of the request, along
with an appeal up to our Circuit, the CIA ultimately provided Morley with
a total of 524 responsive records (some of which were segmented and/or
redacted). Of those records, 113 were from the files the CIA previously
had transferred to NARA.
When Morley moved for attomey’s fees the first time [Dkt. #107], l considered
the four factors that our Circuit has instructed must guide a district court’s discretion in
awarding fees. Morley IV, 828 F. Supp. 2d at 265-66. The four factors are : “l) the
public benefit derived from the case; 2) the commercial benefit to the plaintiff; 3) the
nature of the plaintiffs interest in the records; and 4) whether the government has a
reasonable basis for withholding the requested information.” Cotton v. Heymcm, 63 F.3d
1115, 1117 (D.C. Cir. 1995). I concluded that all four factors weighed against Morley.
Our Circuit, however, vacated and remanded for reconsideration in light of the approach
to the public benefit factor announced in Davy v. CIA, 550 F.3d 1 155 (D.C. Cir. 2008).
See Morley V, 719 F.3d at 690. On remand, I discussed the analogies to and distinctions
from Davy extensively. I again concluded the public benefit factor did not weigh in
Morley’s favor and denied his motion for attorney’S fees. What I did not focus on, as our
Circuit Court pointed out on appeal from that second decision, was the ex ante likelihood
that Morley’s FOIA request would produce new information of public benefit. As such,
the Circuit Court vacated and remanded on that issue, the parties have briefed it, and I
turn to it now.
ANALYSIS
l consider all four FOIA factors in light of what our Circuit has explained is the
“purpose” of the FOIA attorney’s fee provision, 5 U.S.C. § 552(a)(4)(E)(i): “to remove
the incentive for administrative resistance 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.” Nall'onwia’e Bla’g. Maz'nt., Inc. v. Sampson, 559 F.2d 704, 711 (D.C. Cir.
1977). The public benefit factor weighs in plaintiffs favor “where the complainant’s
victory is likely to add to the fund of information that citizens may use in making vital
political choices.” Fensz‘er v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979). Evaluation of
the public benefit factor “requires consideration of both the effect of the litigation for
which fees are requested and the potential public value of the information sought.” Davy,
550 F.3d at 1159. According to our Circuit Court in this case, if there was a “decent
chance” that plaintiffs FOIA request would produce “useful new information” about the
JFK assassination when he made it, then the public benefit factor weighs in plaintiffs
favor. Morley VII, 810 F.3d at 844.
Plaintiff anticipated uncovering new information about the link between the JFK
assassination, the Cuban activist group called the Directorio Revolucionario Estudiantil
(“the DRE”), and the CIA. Specifically, plaintiff sought to uncover any connection
between Joannides, a CIA officer who appears to have been assigned to cover the DRE
around the time of the assassination, and the DRE’s known contact with Lee Harvey
Oswald. Any such connection, it is fair to say, would be “useful new information”
indeed about the JFK assassination.l ln evaluating whether the request had a “decent
chance” of producing this information, l look at what ex ante reason there was to believe
that there was such a connection between Joannides and the assassination.
Morley’s sprawling explanation on this point makes it difficult for the Court
identify what the reasons were to believe that the search would turn up something useful.
E.g., Supp. Mem. of P. & A. ISO Pl.’s Mot. for Award ofAttorneys’ Fees and Costs 8-27
[Dkt. #156]. Morley’s reasons for anticipating a connection seem to be based largely on
the declaration of Dan L. Hardaway, who worked as a researcher on the U.S. House of
l I assume for the purpose of this analysis that Morley had reason to believe his request would uncover
some documents not already in the National Archives.
Representatives Select Committee on Assassinations. ]a’. Hardaway worked with
Joannides, who was the CIA’s liaison to the congressional investigation Ia’. at 9-10.
Hardaway became suspicious that Joannides was covering up information in this role,
especially because Joannides apparently did not disclose that he had been an agent
assigned to cover the DRE during the relevant time period. Ia’. at 9-14. Morley’s request
thus had at least a decent chance of turning up information that would clarify the worth of
the congressional investigation into the JFK assassination. See id. at 21-23. But I see
little basis to support the ex ante likelihood that Joannides would himself be connected to
Lee Harvey Oswald or the JFK assassination. Morley’s request was more like searching
for a needle in a haystack than a targeted query with “decent chance” of turning up
“useful new information” about the JFK assassination. But even taking the most
generous possible interpretation-that information indicating Joannides was not linked to
Oswald or to the assassination through the DRE is “useful” to disprove a possible
conspiracy theory-I find that the expectation-adjusted value of the public benefit that
plaintiff sought to provide was small.
Putting the public benefit factor into context, the question at issue in the second
and third factors is whether attorney’s fees were necessary and appropriate to incentivize
Morley to produce this level of public benefit. Davy, 550 F.3d at 1158. Although Morley’s
interest in the information he sought was in part scholarly, he also had a private incentive
to pursue the FOIA request. Accora’ Morley IV, 828 F. Supp. 2d. at 264-65. Morely’s
commercial benefit from this FOIA litigation consisted of (1) some compensation for
writing news articles, and (2) not having to expend resources engaging with the JFK
collection at the National Archives. Ia’. Concededly, these private incentives are small,
but so was the expectation-adjusted public benefit. Accordingly, the first three factors do
not clearly indicate whether the Court should award attomey’s fees-_it is a very close
call whether taxpayers should provide an exogenous incentive for a request like
l\/Iorley’s.2
Thankfully, the final factor breaks the tie_it weighs heavily against Morley and is
ultimately dispositive. See Maya’ak v. U.S. Dep't of Justz`ce, 579 F. Supp. 2d 105, 109
(D.D.C. 2008) (“[T]he failure to satisfy the fourth element of an unreasonable
withholding may foreclose a claim for attorney fees or costs” (alterations and quotation
marks omitted)); see also Nationwl`a'e Bla’g., 559 F.2d at 712 n. 34 (“[I]f the government
only establishes that it had a reasonable basis in law for resisting disclosure it may be
proper to deny a FOIA plaintiffs motion for attorney fees unless other factors
affirmatively justify such an award.”). An award of attorney’s fees and costs is not
necessary in this case to ensure that the agency refrains from needlessly frustrating efforts
2 Our Circuit Court cast some doubt whether the cost savings from avoiding the National Archives should
be counted as a commercial benefit that inured to Morley. It suggested that perhaps a person seeking
records ought to be able to avoid the costs of searching for them in the National Archives. Cf Morley
VII, 810 F.3d at 845. In an abundance of caution, therefore, I will clarify that even if costs avoided do not
count as a commercial benefit, the public interest in incentivizing Morley would be low enough in this
case that I would still find the fourth factor dispositive.
-…»- ».>a¢»-»¢MM'¢;~»
to obtain information. As I found in Morley IV, 828 F. Supp. 2d. at 265, the “CIA []
advanced a reasonable legal position” and did not engage “in any recalcitrant or obdurate
behavior”; hence, this factor “weighs strongly in favor of the CIA.”3 Enough said !
CONCLUSION
Thus, for all the foregoing reasons, plaintiffs Renewed Motion for Attomey’s
Fees and Costs [Dkt. #156] is DENIED. An appropriate order shall accompany this
iam
RICHARD L N
United States District Judge
Memorandum Opinion.
3 Because l hold that Morley is not entitled to fees or costs, I do not address the CIA’s contention that he
did not “substantially prevail” in his FOIA litigation and, therefore, is not eligible for fees or costs. Def.’s
Opp’n 6-7 [Dkt. #159]. *‘