Attorneys’ Fees Under the Post-2007 Freedom of Information Act: A Onetime Test’s Restoration and an Overlooked Touchstone’s Adoption

85 Tennessee Law Review 571 (2018)

90 Pages Posted: 17 Oct 2018 Last revised: 13 Jan 2020

See all articles by Amir Shachmurove

Amir Shachmurove

Harvard Law School; University of Pennsylvania, School of Arts and Sciences; Reed Smith LLP ; Developers Slack; Troutman Sanders LLP; U.S. District Court for Eastern District of New York; U.S. District Court for the Middle District of Louisiana; U.S. District Court for the Southern District of California; U.S. Bankruptcy Court for the Middle District of Florida; U.S. Bankruptcy Court for the Eastern District of New York

Date Written: 2018

Abstract

For more than a century, countless citizens defended the public’s right of access to government data but elicited the persistent disregard of this nation’s ultimate powerbrokers. Encomia would be given at county fairs and on city streets, but events quickly rendered false even the most poignant of speeches. As such, for more than a century, much government information remained shrouded behind a veil of secrecy, its exposure resisted, their prerogatives championed, by thirty-six presidents in the face of constitutional silence and congressional indifference. In time, as the rate of this information’s acquisition grew and a once nascent federal bureaucracy assumed newer powers and more fearsome dimensions, the populist crescendo for public access to the government’s voluminous files attained fever pitch in 1966.

In that year, Congress finally succumbed, passing the Freedom of Information Act (“FOIA”) in 1966. Hailed then and still considered one of the strongest government accountability measures ever adopted, FOIA did not then include an attorneys’ fee provision. Problems naturally followed, and that omission was corrected in 1974 with the insertion of a sentence, one borrowed wholesale from that era’s civil rights statutes. With little guidance from this amendment’s ample history, federal courts inputted a causal requirement into its vague text: to recover, an attorney would need to prove that his or her client’s suit had somehow triggered the relevant information’s actual release, an approach soon known as the catalyst theory of recovery.

In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, however, the Supreme Court deemed this theory to be inconsistent with two other federal statutes’ similarly worded attorneys’ fees requirement. The Buckhannon majority left FOIA undiscussed, but as appellate courts soon concluded, the same fate portended for its attorneys’ fees provision. Thus, to ensure FOIA’s future effectiveness, the Openness Promotes Effectiveness in our National Government Act of 2007 (“OPEN Act”) was enacted by large majorities and signed by a happy president. Emphasizing Congress’ documented resolve to “fix” Buckhannon, the few appellate courts compelled to construe this latest emendation have been almost unanimous: for FOIA’s purposes, the catalyst theory undercut by Buckhannon has been reenthroned.

With history, text, and purpose as its lodestars, this article rejects this conclusion. Instead, it concurs with the opinion of the dissenting appellate judge in First Amendment Coalition v. United States Department of Justice and demonstrates how the majority’s view defies FOIA’s explicit text and broad purpose, as it now stands. To do this, it does more than cite and utilize the basic statutory maxims that so many have ignored. It too wades through familiar—and unfamiliar — political episodes and accounts for both familiar — and unfamiliar — legislative history. It too nods to a past well-documented — and takes heed of the proclivities of the media’s latest dervishes and FOIA’s reluctant judicial sentinels. With neither past nor present privileged, it unfolds a teeming tale of laws too badly read and secrets too lately told.

In this regard, this article is the first — and, so far, only — piece to consider FOIA's post-Buchanan history and critique the federal courts' emerging — and badly flawed — approach.

Keywords: FOIA, Freedom of Information, FOIA, Right To Know, Government Transparency, Government Secrecy, FRA, APA, Buckhannon, OPEN Act, Awlaki, OLC, Madison, Attorneys’ Fees, 1974 Amendments, Church of Scientology, Farrar, Hewitt, Rhodes, First Amendment, New Media, Judicial Deference, American Rule, Power

JEL Classification: K10, K19, K20, K29, K30, K39, K40, K41, K49

Suggested Citation

Shachmurove, Amir, Attorneys’ Fees Under the Post-2007 Freedom of Information Act: A Onetime Test’s Restoration and an Overlooked Touchstone’s Adoption (2018). 85 Tennessee Law Review 571 (2018), Available at SSRN: https://ssrn.com/abstract=2968492

Amir Shachmurove (Contact Author)

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