Elec. Privacy Info. Ctr. v. FBI, No. 2013-00442, 2014 WL 5713859 (D.D.C. Nov. 5, 2014) (Chutkan, J.)

Elec. Privacy Info. Ctr. v. FBI, No. 2013-00442, 2014 WL 5713859 (D.D.C. Nov. 5, 2014) (Chutkan, J.)

Re: Request for records concerning FBI's Next Generation Identification program

Disposition: Granting in part and denying in part plaintiff's motion for fees and costs; awarding plaintiff $19,923 in attorneys' fees and $350 in costs; dismissing case with prejudice

• Attorney Fees, Eligibility:  "In light of the well-established precedent in this Circuit, the Court finds that [plaintiff] is eligible for attorneys' fees and costs because it substantially prevailed by obtaining production of responsive documents pursuant to the Court's June 28, 2013 Order, which approved the parties' stipulated production date."  "Compliance with this Order constituted both some relief on the merits of [plaintiff's] claim and a judicially sanctioned change in the parties' legal relationship."  "That the FBI consented to the terms mandated by the Court's Order is immaterial."
   
• Attorney Fees, Entitlement:  "[G]iven that the first three factors favor an award of fees and the fourth is neutral, the Court finds that [plaintiff] is entitled to recover attorneys' fees pursuant to FOIA."  The court first finds that "[t]he dissemination of the material sought by [plaintiff], and the NGI system itself, are fairly within the public interest" because "[t]here can be little dispute that the general public has a genuine, tangible interest in a system designed to store and manipulate significant quantities of its own biometric data, particularly given the great numbers of people from whom such data will be gathered."  Next, the court finds that "the commercial benefit and nature of interest factors weigh in favor of [plaintiff's] fees request" because plaintiff "describes itself as a not-for-profit public interest and research organization" and "contends that its interests in the records obtained in this case are entirely public-oriented and that it has derived no commercial benefit from its FOIA request or from this suit."  Last, "the Court finds the fourth factor neutral in its analysis" because "while the FBI has not met its burden of showing a reasonable or colorable basis in law for not timely processing [plaintiff's] requests, there is also no evidence that the FBI acted recalcitrantly or obdurately."
   
• Attorney Fees, Calculation:  First, "the Court rejects the FBI's arguments to reduce the time [plaintiff's] counsel spent drafting, reviewing, discussing, and filing the Complaint."  Second, "the Court finds that the time [plaintiff] spent reviewing the FBI's document production, including the time spent resolving a non-sequential document issue, was reasonably incurred in litigating this case."  Third, "[t]he Court finds that [certain] work [plaintiff] performed . . . was not 'excessive, redundant, or otherwise unnecessary' and that it was reasonable under the circumstances."  However, "the Court agrees with the FBI that it was unnecessary for [plaintiff] to bill for three attorneys on a single telephone call."  The court also finds that plaintiff used the correct billing rate concerning two attorneys, but is "unable to determine from the record" whether plaintiff had used the correct rate concerning a third attorney.  Additionally, "[t]he Court finds the majority of [plaintiff's] fee requests warranted and supported and that [plaintiff] did not spend significant time defending the reduced fees, and therefore it declines any further reduction for 'fees on fees.'"  Finally, "the Court finds that the . . . fees [plaintiff] seeks for the . . . work spent preparing its Reply brief are reasonable and recoverable."