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September 05, 2014

The Price the FEC Must Pay For Insisting On a Legally Flawed Position: Over $153,000

By Anne L. Weismann

Federal Election CommissionToday, in CREW’s long running lawsuit against the FEC based on a FOIA request for commissioner correspondence with outside entities and individuals, CREW v. FEC, Civil No. 11-951 (CKK) (D.D.C.), U.S. District Court Judge Colleen Kollar-Kotelly ordered the agency to pay CREW over $153,000 in attorneys’ fees and costs. CREW incurred these fees when it was forced to litigate the FEC’s refusal to fully satisfy CREW’s FOIA request. This decision should stand as a warning to all federal agencies that play Russian roulette with their FOIA obligations — the cost of flouting statutory responsibilities can be pretty high.

At first blush, the underlying lawsuit seems pretty standard: FOIA request is submitted, agency drags its feet, and after months pass with no records produced, requester files a lawsuit. But that is where things began to get interesting. Rather than simply produce all non-exempt documents, the FEC argued CREW was not properly in court in the first place because it jumped the gun in filing its lawsuit. According to the FEC, all it needed to do to satisfy the 20-business day period the FOIA imposes on agencies for making a determination on a request is tell a requester the agency is working on the request. The district court agreed, finding CREW had failed to exhaust administrative remedies and therefore could not proceed with its lawsuit.

CREW appealed this ruling and the D.C. Circuit Court of Appeals reversed the opinion in a ruling that has far-reaching consequences beyond this particular lawsuit. In its opinion, the appellate court made crystal clear exactly what agencies must accomplish in the 20 business days following their receipt of a FOIA request. The three required steps include gathering and reviewing responsive documents; determining what the agency will release and withhold, and informing the requester of that determination along with the reasons for any withholdings; and advising the requester of administrative appeal rights. Significantly, the FEC did none of these things before CREW filed its lawsuit. As a result, the D.C. Circuit found CREW did not have to exhaust administrative remedies, and remanded the case to the district court for further proceedings.

Perhaps the FEC should not be faulted for initially insisting on a legal position contrary to the language, intent, and legislative history of the FOIA. But the story does not end there. On remand, the FEC once again dragged its feet, doing nothing until settlement negotiations — initiated by CREW — occurred two years later. Only then did the FEC release a second, final batch of responsive material. In the interim the FEC provided no justification whatsoever for its refusal to release additional documents.

To make matters worse, the FEC refused to recognize it had any liability for CREW’s attorney fees and costs as a prevailing party. So once again the parties returned to the district court to litigate CREW’s entitlement to fees. And once again the FEC lost when Magistrate Judge Facciola, assigned by Judge Kollar-Kotelly to resolve the fee dispute, found CREW was entitled to over $139,000 in fees and costs.

Did the agency finally admit defeat? Of course not. Instead, the FEC filed objections to the Magistrate Judge’s findings, asking that CREW be awarded exactly zero for its labor and success, triggering yet another round of briefing and yet more attorneys’ fees incurred by CREW.

All this is why today’s victory — a finding by Judge Kollar-Kotelly that CREW should recover fees of $153,258.98 (taking into account the fees incurred in briefing the issue before her) and $500 in costs — is particularly sweet. In a well-reasoned 32-page opinion, that supplements the detailed and well-reasoned 30-page opinion of Magistrate Judge Facciola, Judge Kollar-Kotelly lays out the multiple reasons why CREW prevailed in this litigation and should get nearly all of its requested fees.

So now, all eyes are on the FEC. Will the agency finally see reason, accept responsibility for its deeply flawed legal positions and litigation strategy, and pay up? Or will the agency follow the course it has charted in the past, a course that will lead it once again to the D.C. Circuit and almost certain liability for even more fees — the money it owes to date together with any fees incurred litigating yet another appeal? Here is hoping reason finally prevails.

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