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Ninth Circuit:
Obtaining Surveillance Documents Might Rate Fee Award
Majority: Reporter Who Obtained Papers Relating to FBI’s Surveillance of Trump, Aides, Is ‘Eligible’ for Fees, Judge Must Decide If He’s Entitled to Them; Dissent: Trump’s Declassification, Not Lawsuit, Caused Release
By a MetNews Staff Writer
A reporter for a news website might be entitled to attorney fees based on his receipt of 412 pages of documents after he brought suit against the Justice Department and others pursuant to the Freedom of Information Act, the Ninth U.S. Circuit Court of Appeals held Friday, over a dissent protesting that declassification by Trump, not the lawsuit, triggered the release of previously withheld records.
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Kevin Poulsen Journalist
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The documents, sought by San Franciscan Kevin Poulsen of “The Daily Beast,” related to electronic surveillance of President Donald Trump and others during the 2016 election. After the 2017 request was received, the Department of Justice neither confirmed nor denied that such records existed.
Attention centered on FBI wiretapping of former Trump campaign adviser Carter Page who was suspected of possible ties to Russia.
After Trump’s declassification of a key memo, the Justice Department, at a March 27, 2018 case management conference, agreed to disclose documents. District Court Judge William H. Orrick of the Northern District of California on that date directed the department to “complete processing and production of responsive, non-exempt documents subject to FOIA by July 20, 2018.”
Orrick later determined that Poulsen “did not secure a change in the legal relationship between the parties” and did not “prevail on the merits of his arguments,” and was thus ineligible for attorney fees.
Circuit Judge Kim McLane Wardlaw wrote the opinion reversing Orrick’s order and remanding the matter for further consideration. Her colleague Daniel P. Collins joined in the opinion, except as to a footnote reciting legislative history which, he said, was unnecessary because there was no ambiguity to resolve.
Dissenting was Richard K. Eaton, a judge of the United States Court of International Trade, sitting by designation. He wrote:
“The Freedom of Information Act (‘FOIA’) provides that a party is eligible to receive attorney fees if it has ‘substantially prevailed’ in its lawsuit….
“In 2007, Congress passed the OPEN Government Act, which, for the first time, provided for two categories of prevailing parties: (1) where the relief sought resulted from a judicial order or consent decree and (2) where a voluntary change in position afforded the plaintiff relief.”
Eaton opined:
“Here, Poulsen has only shown that the agency’s
change in position, due primarily to the President’s declassification, was memorialized in an enforceable court order. He has not shown that his lawsuit was a substantial cause (or indeed any cause at all) of the relief he obtained. I would find that he is not eligible for attorney fees under either category provided for by the 2007 Amendments.”
Viewing it differently, Wardlaw declared that Poulsen is “eligible” for an award of fees under either category because Poulsen would up with records he had sought. She commented:
“We reject the government’s attempt to reduce the March 27 Order to a mere scheduling order that ‘simply memorialized and adopted’ the DOJ’s changed position. By its plain terms, it ‘ORDERED...[the] production of responsive, non-exempt documents subject to FOIA by July 20, 2018.’ Thus, the March 27 Order is distinguishable from those orders deemed ‘procedural’ in nature (i.e., ‘conduct a search’), as opposed to ‘substantive’ (i.e., ‘produce documents’)….Moreover, the government’s agreement to, or even its proposal of, specific terms is irrelevant to our analysis.”
While determining that Poulsen is “eligible” for fees, the majority did not order that they be awarded, recognizing that Orrick has discretion in the matter.
“We note…that our analysis does not render irrelevant issues related to how the judicial order came into existence,” Wardlaw said. “Indeed, whether the government’s initial nondisclosure position was legally correct is a factor that the district court must weigh at the discretionary entitlement phase.”
The case is Poulsen v. Department of Defense, 19-16430.
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