Court of Appeals Establishes Criteria for Awarding Attorney’s Fees in D.C. FOIA Cases

On August 23, 2012, the District of Columbia Court of Appeals decided Fraternal Order of Police v. District of Columbia, No. 11-CV-545, slip op. (D.C. Aug. 23, 2012) in which it considered “whether a [plaintiff] who prevails in a [District of Columbia] Freedom of Information Act ([D.C.] FOIA) lawsuit is automatically entitled to attorney’s fees under that statute, and, if not, what criteria a trial court should consider when determining whether to award fees.” Id. at 1-2 (footnote omitted).

This case arose from a D.C. FOIA request submitted to the District of Columbia Metropolitan Police Department (“MPD”) and the Office of the Chief Technology Officer by the Fraternal Order of Police (“FOP”), which is a union representing officers of the MPD. Id. at 2-3. The request sought production of e-mail messages sent to or from the Police Chief and her assistant chiefs regarding the FOP. Id. at 3. The MPD failed to respond to the request which resulted in the FOP suing the District of Columbia to compel production. Id. at 3-4. The trial court “granted summary judgment in favor of the FOP” and “ordered the District to produce” documents, but denied the FOP’s request for attorney’s fees notwithstanding that it was the prevailing party. Id. at 5-6. In denying the request for attorney’s fees, the trial court applied “criteria used by federal courts when applying the federal [Freedom of Information Act] provision addressing fee awards.” Id. at 6. The FOP appealed the denial of attorney’s fees. Id.

The Court of Appeals began its analysis by addressing preliminary questions of law regarding the award of attorney’s fees under the D.C. FOIA. Specifically, the Court of Appeals held that (1) “the D.C. FOIA, like the federal [Freedom of Information Act], does not provide for an automatic award of attorney fees to every successful [D.C.] FOIA plaintiff, but rather contemplates a reasoned exercise of the courts’ [sic] discretion,” id. at 10 (quotation marks and ellipse omitted); and (2) the determination of whether to award attorney’s fees under the D.C. FOIA turns on consideration of the same factors used by federal courts when applying the federal Freedom of Information Act provision addressing fee awards. Id. at 10-11. Specifically, the Court of Appeals held that, “[o]nce it is established that a [plaintiff] is eligible to receive attorney’s fees, a trial court evaluating a [plaintiff’s] entitlement to fees must, at a minimum, consider four factors: ‘(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.'” Id. at 11 (quoting Tax Analysts v. United States Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992)).

The Court of Appeals then proceeded to consider whether the trial court abused its discretion in denying the FOP’s request for attorney’s fees. Id. at 19-26. In doing so, it considered the trial court’s analysis of each of the aforementioned factors. Id. The gist of the trial court’s analysis with respect to the first three factors was that none of those factors weighed in favor of an award of attorney’s fees because the FOP’s request did not provide any benefit to the public and was instead directed toward promoting or protecting the FOP’s self-interest. Id. at 20-23. The trial court recognized that the fourth factor weighed in favor of an award of attorney’s fees as the District did not have a reasonable basis for withholding the requested documents. Id. The trial court concluded, however, that the other factors outweighed this last factor and thus denied the request for attorney’s fees. Id. at 25-26. The Court of Appeals ruled that the trial court did not abuse its discretion in analyzing and weighing the four factors. Accordingly, it affirmed the trial court’s order denying the FOP’s request for attorney’s fees. Id. at 27.