Ellis v. U.S.
| Decision Date | 12 April 1996 |
| Docket Number | No. 94-C-778 G.,94-C-778 G. |
| Citation | 941 F.Supp. 1068 |
| Parties | Tina ELLIS, et al., Plaintiffs, v. UNITED STATES of America and the Washington County Water Conservancy District, Defendants. |
| Court | U.S. District Court — District of Utah |
Dale A. Kimball, Robert S. Clark, Mark F. James, Gregory M. Hess, Kimball, Parr, Waddoups, Brown & Gee, Salt Lake City, Utah, for plaintiffs.
Scott M. Matheson, Jr., United States Attorney, Stephen J. Sorenson, Carlie Christensen, Assistant United States Attorney, Salt Lake City, Utah, for defendant United States.
The plaintiffs made a motion for the award of attorney fees and costs in pursuing their request under the Freedom of Information Act. The matter was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). The magistrate judge made a report and recommendation that the motion be denied. No objection has been taken to the report and recommendation. The court has reviewed the file and hereby adopts the report and recommendation of the magistrate judge. Therefore,
IT IS HEREBY ORDERED that the plaintiffs' motion for attorney fees and costs for pursuit of their Freedom of Information Act is denied.
This case is before the court on plaintiffs' motion for an award of attorney's fees and costs incurred in pursuing a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. (Pls.' Renewed Mot.Compel FOIA Compliance, Prod.Docs., & Payment Costs & Att'y Fees (hereinafter "Renewed FOIA Mot.," File Entry 119.) Plaintiffs' FOIA request sought various documents relating to an incident that occurred in Zion National Park in July 1993 which resulted in the drowning of two members of a hiking party. The case was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). The magistrate judge heard oral argument on this issue on February 7, 1996.
On July 15, 1993, David Fleischer, Mark Brewer, Kim Ellis, and five teenage boys entered the slot portion of Kolob Creek Canyon in Zion National Park as part of a planned outing. A few hours after their initial descent into the canyon, Fleischer and Ellis drowned. The surviving members of the party remained stranded in the canyon for five days and four nights while an intensive search and rescue operation was conducted to retrieve them and to locate and recover the bodies of Fleischer and Ellis.
On December 30, 1993, plaintiffs filed an administrative claim with the Department of Interior under the Federal Tort Claims Act (FTCA) seeking approximately $24.5 million in damages for losses allegedly sustained as a result of this incident. (U.S. ex. F.)1
On January 25, 1994, Mark James, counsel for plaintiffs, sent a letter to Donald A. Falvey, Superintendent of Zion National Park, requesting, pursuant to FOIA, thirteen categories of documents relating to the Kolob Creek incident. (James Decl. ¶ 1, & ex. 1, file entry 29.)2 Mr. Falvey forwarded plaintiffs' FOIA request to Jack O'Brian, the FOIA officer in the Rocky Mountain Regional Office of the National Park Service (NPS). (James Decl. ¶ 2, & ex. 2; O'Brian Decl. ¶ 6.)3
On January 28, 1994, Mr. O'Brian wrote to Mr. James informing him that he could expect a response to his FOIA request by February 10, 1994. (James Decl. ¶ 2, & ex. 2; O'Brian Decl. ¶ 8.) On February 10, 1994, Mr. O'Brian again wrote to Mr. James stating that he was taking a ten-day extension pursuant to 43 C.F.R. § 2.17(c) due to the need to search for and examine a voluminous number of records and to consult with other components within the Department of Interior. Mr. O'Brian indicated that a response would be sent by February 25, 1994. (James Decl. ¶ 3, & ex. 3; O'Brian Decl. ¶ 9.)
On February 23, 1994, Mr. O'Brian wrote to Mr. James informing him pursuant to 43 C.F.R. § 2.17(f) that because of the potentially time-consuming and voluminous nature of his request that significant time would be necessary to enable the National Park Service to determine which records were required to fulfill the request and where those records were located. Mr. O'Brian explained that because of the general nature and time span of the request that it was likely that the documents had been retired to any one of twenty-eight Federal Records Centers (FRC's) across the United States, and consequently, could only be located by a manual search. Past experience indicated that the manual search and review process easily could take six months from the date the specific request was forwarded to the administrator of the FRC's. Mr. O'Brian further explained that the FRC's are exempt from the legislatively mandated time frames and are only required to produce documents on a first-in, first-out basis dictated by the complexity of the request. Mr. O'Brien indicated that plaintiffs' request would be considered complex. Consequently, Mr. O'Brien suggested that plaintiffs might wish to consider canceling, modifying, or otherwise restating their request. Finally, Mr. O'Brian stated that he would not begin processing the request until he received (1) a written assurance that Mr. James was willing and able to pay in advance any recoverable fees incurred by the NPS in processing the request, and (2) a statement indicating Mr. James's desire either to cancel or modify the request or to proceed with the original request. (James Decl. ¶ 4, & ex. 4; O'Brian Decl. ¶¶ 10-11.)
On March 7, 1994, Mr. James submitted a modified FOIA request, narrowing the scope of the information sought. However, Mr. James did not provide any assurance of his willingness or ability to pay any fees incurred in processing the request. (James Decl. ¶ 5, & ex. 5; O'Brian Decl. ¶ 12.)
On April 15, 1994, Mr. James telephoned Mr. O'Brian to inquire about the status of the FOIA request. Mr. O'Brian advised him that NPS could not process the request until it received written assurance of his willingness and ability to pay the fees in advance. That same day, Mr. James wrote a letter providing the necessary assurance. (James Decl. ¶ 7, & ex. 6; O'Brian Decl. ¶ 13.)
On April 19, 1994, Mr. O'Brian wrote Mr. James acknowledging receipt of his written assurance of his willingness and ability to pay the anticipated fees. Mr. O'Brian stated that NPS would send an estimate of the costs to process the modified request no later than May 3, 1994. (James Decl. ¶ 8, & ex. 7.)
On May 3, 1994, Mr. O'Brian wrote Mr. James advising him that the NPS was taking a ten-day extension of time pursuant to 43 C.F.R. § 2.17(c) to search for and collect the requested information from a variety of sources located outside Denver and to consult with another agency and components of the Department of the Interior. Mr. O'Brian indicated that a final reply would be sent by May 17, 1994. No estimate of the processing costs was included. (James Decl. ¶ 9, & ex. 8; O'Brian Decl. ¶ 14.)
On May 4, 1994, Mr. O'Brian received approximately 250 pages of material from Zion National Park that NPS staff believed was responsive to the FOIA request. (O'Brian Decl. ¶ 15.)
On May 17, 1994, Mr. O'Brian wrote Mr. James that the information sought in the modified FOIA request had been researched, gathered, and organized by NPS staff. Mr. O'Brian stated, however, that because plaintiffs had filed a notice of tort claim, the United States Attorney and United States Department of the Interior solicitors would have to review the material before release to determine whether any of the documents had been prepared in anticipation of litigation. Mr. O'Brian advised that the legal review process would probably take two to three weeks. (James Decl. ¶ 10, & ex. 9; O'Brian Decl. ¶ 16.)
On June 20, 1994, Mr. O'Brian received a detailed list of materials responsive to the FOIA request from the Regional Solicitor's office with document-by-document instructions regarding disclosure. At that time, Mr. O'Brian began to assemble and photocopy the documents which were to be disclosed and to redact or segregate those portions which were not. (O'Brian Decl. ¶ 17.)
On June 21, 1994, Mr. O'Brian wrote to Mr. James informing him that the U.S. Attorney's office and the Regional Solicitor's office were in the final stages of reviewing the material and that the review would be completed in the near future. (O'Brian Decl. ¶ 18; James Decl. ¶ 12, & ex. 10.)
On June 27, 1994, Mr. O'Brian contacted Mr. Falvey and requested that Zion National Park staff conduct a second broad-based search of all park files that might contain material responsive to plaintiffs' FOIA request. (O'Brian Decl. ¶ 19.)
On July 6, 1994, Mr. O'Brian wrote Mr. James advising him that the review process by the U.S. Attorney and the Regional Solicitor in Salt Lake City had been completed. Mr. O'Brian stated that within seven to ten days, the material would be forwarded to his office in Denver for final processing in preparation for release directly to Mr. James. (O'Brian Decl. ¶ 20; James Decl. ¶ 14, & ex. 12.) That same day, Mr. James also wrote to Mr. O'Brian requesting a date certain for delivery of the FOIA materials. Mr. James warned Mr. O'Brian that if the FOIA information was not immediately provided, he would have no alternative but to seek relief in the United States District Court. (James Decl. ¶ 13, & ex. 11; O'Brian Decl. ¶ 20.)
On July 15, 1994, Mr. O'Brian wrote Mr. James advising him of the amount of the administrative fee for fulfilling the FOIA request. Mr. O'Brian stated that he would mail the FOIA information within twentyfour hours of receiving payment of the fee. In addition, Mr. O'Brian stated that when completed, he would mail a second package containing duplicates of pictures requested by plaintiffs and any other documents that might have surfaced in the meantime. (O'Brian Decl. ¶ 21; James Decl. ¶ 15, & ex. 13.)
On July 20, 1994, Mr. O'Brian wrote Mr. James stating that he had...
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