New York Times Co. v. Central Intelligence Agency

Citations: 251 F. Supp. 3d 710; 2017 WL 1573234; 2017 U.S. Dist. LEXIS 66085Docket: 16 Civ. 3098 (JSR)

Court: District Court, S.D. New York; May 1, 2017; Federal District Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The New York Times Company initiated a lawsuit under the Freedom of Information Act (FOIA) against the Central Intelligence Agency (CIA) to obtain three reports about chemical weapons in Iraq. Initially, the CIA employed a "Glomar response," refusing to confirm or deny the existence of the reports. However, following oral arguments, the CIA reversed its stance and produced the reports with redactions, leading both parties to withdraw their summary judgment motions as moot. Subsequently, The Times requested $61,909.86 in attorney's fees and costs under FOIA’s fee-shifting provision.

The court determined that The Times was eligible for an award of $51,909.86 in fees. The evaluation process for FOIA fee applications involves three steps: (1) confirming the applicant's eligibility by demonstrating that they "substantially prevailed" in the litigation; (2) assessing entitlement to fees by considering four factors: public benefit, commercial benefit to the plaintiff, the nature of the plaintiff's interest in the records, and the government's basis for withholding the information; and (3) determining if the fee request is "presumptively reasonable" under the lodestar approach.

The CIA acknowledged The Times' eligibility for fees but contested its entitlement. The court found in favor of The Times, particularly noting that the public benefit factor strongly supported its claim, as the reports pertained to significant public interest surrounding the government's knowledge of chemical weapons in Iraq. The court also concluded that The Times' interest in the records was public-minded and journalistic rather than commercial, thus favoring its case for entitlement to attorney's fees.

The CIA acknowledges that the first three factors favor The Times, briefly mentioning them in a footnote while emphasizing "unique circumstances," such as the public's prior knowledge of its interest in chemical weapons, the small volume of documents produced, and concerns that awarding fees might deter discretionary releases. However, this argument fails to adequately address the public's interest in the investigation's findings versus the CIA's interest in withholding information. The CIA shifts its focus to the fourth factor—whether it had a reasonable basis for withholding information—claiming this factor alone could negate The Times' entitlement to fees, citing D.C. Circuit precedent. In contrast, The Times contends it would have prevailed on summary judgment and suggests the CIA's change in stance indicates a lack of confidence in its position. The court refrains from determining the summary judgment issue but rejects the CIA's assertion that a favorable ruling on the fourth factor supersedes the others. Noting that no Second Circuit decision supports such a rigid interpretation and that the Senate Report indicates the factors are for guidance rather than strict standards, the court decides to weigh the reasonableness of the CIA’s Glomar response against the other three factors. Ultimately, the court finds that even if the CIA could prevail on the fourth factor, the preponderance of favorable considerations for The Times regarding the other three factors justifies an award of attorney's fees. The court also highlights the CIA's failure to recognize relevant case law that undermines its claim of reasonableness.

The Times’ fee application totals $61,909.86, consisting of $61,370 in attorney’s fees and $539.86 in costs, with the CIA not disputing the hourly rates of $650 for a senior attorney and $400 for junior attorneys. However, the CIA raises several objections to specific fees. 

Firstly, the CIA claims that The Times' success should be reduced due to alleged prior acquisition of the reports through a leak, arguing that this undermines the victory's significance. The Court finds this argument meritless, noting the CIA's failure to substantiate the leak claim and clarifying that the principle cited (Hensley v. Eckerhart) applies to limited success within a lawsuit, not advantages gained externally.

Secondly, the CIA argues the 55 hours spent on summary judgment was excessive, suggesting a reduction due to The Times' familiarity with FOIA litigation. The Court agrees and will reduce the fee award by $5,000, acknowledging that The Times could have been more efficient.

Thirdly, the CIA contends that the $10,850 sought for "fees on fees" is excessive given the brief nature of the application and efforts to resolve disputes outside of court. The Court concurs and reduces this request by another $5,000.

Lastly, the CIA opposes $7,445 in fees related to The Times’ unsuccessful opposition to a supplemental classified declaration, arguing that such fees should not be recoverable. However, referencing Hall v. CIA, the Court holds that fees for necessary litigation steps, even if unsuccessful, are recoverable, thus denying the CIA's objection in this regard.

The CIA's withdrawal of its Glomar response indicates that it believed a classified declaration would not sufficiently support its position, leading to the decision to produce the requested reports. Consequently, The Times is entitled to recover attorney's fees. The CIA contests the fees related to The Times’ review of the produced reports, arguing that a plaintiff should review agency disclosures for sufficiency in FOIA lawsuits. The Times spent only two hours on this review, which is deemed reasonable. The CIA also opposes fees for pre-complaint "administrative" work, referencing a past case that denied fees for extensive pre-complaint efforts. However, The Times only logged four hours on such work, all related to drafting the complaint shortly before filing, which is also considered reasonable. Therefore, The Times’ motion for attorney’s fees and costs is granted, awarding $51,909.86, and the Clerk of Court is instructed to close the related docket entry. The term "Glomar response" originates from a case involving the CIA's refusal to confirm or deny the existence of certain records.