Wilson v. Fed. Bureau of Investigation
| Decision Date | 14 October 2022 |
| Docket Number | 1:20-cv-10324 (LAK) (SDA) |
| Parties | John Wilson, Plaintiff, v. Federal Bureau of Investigation, Defendant. |
| Court | U.S. District Court — Southern District of New York |
John Wilson, Plaintiff,
v.
Federal Bureau of Investigation, Defendant.
No. 1:20-cv-10324 (LAK) (SDA)
United States District Court, S.D. New York
October 14, 2022
REPORT AND RECOMMENDATION
Stewart D. Aaron, United States Magistrate Judge
TO THE HONORABLE LEWIS A. KAPLAN, UNITED STATES DISTRICT JUDGE:
On April 4, 2022, the Court adopted the undersigned's Report and Recommendation at ECF No. 44 granting in part and denying in part Defendant's motion for summary judgment and granting in part and denying in part Plaintiff's cross-motion for summary judgment. (4/4/22 Mem. End., ECF No. 49.) Presently before the Court is Plaintiff's motion for attorneys' fees pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. (Pl.'s Mot. for Atty.'s Fees, ECF No. 59). For the reasons set forth below, I respectfully recommend that Plaintiff's motion be DENIED.
BACKGROUND
Plaintiff, John Wilson (“Plaintiff” or “Wilson”), a former Wall Street mining analyst, is a dual citizen of the United States and Australia, who currently resides in Sydney, Australia. (See Wilson Decl., ECF No. 40-1, ¶¶ 3-4.) According to Wilson, in March 1996, he had authored a report that flagged concerns about the U.S.-based mining company Freeport McMoran, including that the company was under investigation by the U.S. Department of State following the abuse of
indigenous protestors at its Grasberg Mine in West Papua, Indonesia, among other human rights concerns. (See id. ¶¶ 9-10.)
From June 2013 to October 2019, Wilson submitted three FOIA requests to Defendant, the Federal Bureau of Investigation (“Defendant” or “FBI”) seeking the disclosure of the FBI's records pertaining to him. (See Compl., ECF No. 1, ¶¶ 8, 16; Pl's 7/13/22 Mem., ECF No. 60, at 24.) Wilson contends that he submitted his FOIA requests following more than a decade of harassment and interference by persons holding themselves out to be acting on behalf of the FBI, which occurred after publication of his report, in an effort to understand the scope and nature of the FBI's investigation into him. (See Pl.'s 7/13/22 Mem. at 2.) Certain documents were produced to Wilson by the FBI based upon his FOIA requests. (See Compl. ¶¶ 9-10.) However, he believed that the FBI conducted insufficient searches in response to his requests. (See Pl.'s 7/13/22 Mem. at 4.)
After exhausting his agency appeals, Wilson commenced this action on December 8, 2020. (See Compl.) Thereafter, the FBI re-reviewed 22 pages of responsive records and, on April 2, 2021, produced five additional pages of documents which the FBI initially deemed duplicates but, upon further examination, determined were not exact duplicates. (See Def.'s 8/25/22 Mem., ECF No. 67, at 4; Schwartz 8/25/22 Decl., ECF No. 68, ¶ 2; see also Schwartz 8/25/22 Decl. Ex. A, ECF No. 68-1.)
On February 3, 2022, the FBI moved for summary judgment and Wilson cross-moved for summary judgment. (See Def.'s Mot., ECF No. 35; Pl.'s Cross-Mot., ECF No. 38.) On February 16, 2022, I issued a Report and Recommendation recommending that the FBI's motion be granted in part and denied in part and that Wilson's cross-motion be granted in part and denied in part. (See
2/16/22 Report and Recommendation, ECF No. 44.) Specifically, I found that all of the FBI's withholdings were appropriate and all of the FBI's searches were adequate, except in one respect - that is, I found that the FBI's reasoning for failing to search its Delta system was unsatisfactory. (See id. at 8-11.) Accordingly, I recommended that the FBI be ordered to search the Delta system for responsive information. (See id. at 11.)
On March 31, 2022, the parties filed a letter advising Judge Kaplan that neither party intended to file objections to my Report and Recommendation and that the FBI conducted the search of the Delta system, as I recommended, and found no responsive records. (See Def.'s 3/31/22 Ltr., ECF No. 48.) On April 4, 2022, Judge Kaplan adopted my Report and Recommendation. (See 4/4/22 Order, ECF No. 49.)
On July 1, 2022, Wilson filed the instant motion seeking $54,410.00 in attorneys' fees and $9,470.43 in costs pursuant to the fee-shifting provision of FOIA, 5 U.S.C. § 552(a)(4)(E)(i). (See Pl.'s Mot. for Attys.' Fees; Pl's 7/13/22 Mem. at 16.) On August 25, 2022, the FBI filed its opposition memorandum. (See Def.'s 8/25/22 Opp. Mem.) On September 9, 2022, Wilson filed his reply. (See Pl.'s 9/9/22 Reply, ECF No. 69.)
On October 6, 2022, pursuant to an Order previously entered by the Court (see 9/26/22 Order, ECF No. 70), Wilson filed a letter stating that the FBI produced additional records after Wilson initiated this action, including an alternate version of previously produced records that included a newly unredacted handwritten notation, “PD Division since 1990” next to the name of one of the investigation subjects. (See Pl.'s 10/6/22 Ltr., ECF No. 72.) In addition, pursuant to the Court's October 6, 2022 Order, the FBI filed a letter asserting that the foregoing unredacted notation previously was withheld pursuant to FOIA Exemptions 6 and 7(C) because the FBI initially
believed that the notation contained personnel information, the disclosure of which would have invaded a personal privacy interest of the individual about whom the notation applied. (See Def.'s 10/6/22 Ltr., ECF No. 71.)
On October 14, 2022, the Court held oral argument by telephone to address Plaintiff's motion.
LEGAL STANDARDS
FOIA provides that a court “may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). The award of attorneys' fees and costs under FOIA is within the Court's discretion. See Elec. Priv. Info. Ctr. v. United States Dep't of Homeland Sec., 218 F.Supp.3d 27, 38 (D.D.C. 2016). Evaluating FOIA fee applications is a three-step process. See New York Times Co. v. Cent. Intel. Agency, 251 F.Supp.3d 710, 713 (S.D.N.Y. 2017).
First, a plaintiff must show that (s)he substantially prevailed in the FOIA litigation. See Warren v. Colvin, 744 F.3d 841, 844 (2d Cir. 2014). The statute provides that “a complainant has substantially prevailed if the complainant has obtained relief through either-(I) a judicial order . . . or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). Under prong (I), “plaintiffs may be considered prevailing parties for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.” Edmonds v. F.B.I., 417 F.3d 1319, 1326 (D.C. Cir. 2005) (quoting Farrar v. Hobby, 506 U.S. 103, 109 (1992)). Under prong (II), referred to as the “catalyst theory” of fee eligibility, a plaintiff must “show[ ] that the lawsuit
was reasonably necessary and the litigation substantially caused the requested records to be released.” See Schwartz v. U.S. Drug Enf't Admin., No. 13-CV-05004 (CBA) (ST), 2019 WL 1299192, at *3 (E.D.N.Y. Mar. 1, 2019), report and recommendation adopted, 2019 WL 1299660 (Mar. 21, 2019).
“Second, if a [plaintiff] is eligible for fees, the court next determines whether the [plaintiff] is ‘entitled' to fees by weighing the following 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) whether the Government had a reasonable basis for withholding requested information.'” New York Times Co., 251 F.Supp.3d at 713 (quoting Pietrangelo v. U.S. Army, 568 F.3d 341, 343 (2d Cir. 2009)). Under the first factor, public benefit, the agency records at issue must be “likely to add to the fund of information that citizens use in making vital political choices.” Ctr. for Popular Democracy v. Bd. of Governors of Fed. Rsrv. Sys., No. 16-CV-05829 (NGG) (VMS), 2021 WL 4452202, at *6 (E.D.N.Y. Sept. 29, 2021) (citing Elec. Privacy Info. Ctr., 218 F.Supp.3d at 44). The second and third factors, the commercial benefit to the plaintiff and the nature of plaintiff's interest, often are considered together. See New York Times, 251 F.Supp.3d at 713. The fourth factor, the agency's reasonable basis for withholding requested information, “considers whether the agency's opposition to disclosure had a reasonable basis in law, and whether the agency had not been recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior.” Davy v. Cent. Intel. Agency, 550 F.3d 1155, 1162 (D.C. Cir. 2008) (internal quotations & citations omitted).
Third, if the plaintiff is both “eligible” and “entitled” to attorneys' fees, a court then determines whether the fees requested by the...
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