Phillips v. U.S. Bureau of the Census, No. 22-9304, 2024 WL 230854 (S.D.N.Y. Jan. 22, 2024) (Rakoff, J.)

Phillips v. U.S. Bureau of the Census, No. 22-9304, 2024 WL 230854 (S.D.N.Y. Jan. 22, 2024) (Rakoff, J.)

Re:  Request for “‘privacy protected noisy data files for both the 2020 Census and the demonstration data pulled from the 2010 Census’”

Disposition:  Denying plaintiff’s motion for attorney fees and costs

• Attorney Fees, Eligibility; Exemption 3:  The court holds that “plaintiff is eligible to recover attorneys’ fees and costs.”  The court relates that “Plaintiff argues that the Stipulation, which the Court signed and entered on April 10, 2023, is a judicial order that provided relief because it required the Census Bureau to either produce ‘the 2020 Redistricting NMF Research Data Product by August 23’ (which is the file that was ultimately released) or failing that, to produce ‘an unsupported file containing the noisy measurements for the 2020 Census Redistricting Data . . . Summary File.’”  “The Census Bureau disagrees.”  “Specifically, the Census Bureau argues that the Stipulation did not require it to produce either of the two files that plaintiff specifically sought in his FOIA request.”  “Instead, the order required the Census Bureau to produce a comparable research data product (which it ultimately produced) or ‘an unsupported file containing the noisy measurements for the 2020 Census Redistricting Data . . . Summary File,’ . . . neither of which is the 2020 file that plaintiff requested, which the Census Bureau still maintains is not subject to disclosure under Exemption 3.”  “Thus, according to the Census Bureau, because the Court-ordered relief does not match the relief specifically sought by plaintiff in his FOIA request and lawsuit, plaintiff has not substantially prevailed via judicial order.”  The court finds that “[e]ven crediting the Census Bureau’s contention that the produced 2020 file differs from the 2020 file that plaintiff specifically requested, the Census Bureau takes an overly myopic and narrow view of what constitutes obtaining ‘relief’ via a judicial order.”  “The statute defines ‘relief’ to include ‘taking of other action on the application or petition of, and beneficial to, a person.’”  “Thus, all that is statutorily required is that plaintiff ‘succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.’”  “Here, the Court-approved Stipulation granted plaintiff at least some of the benefit he sought in filing his FOIA request and lawsuit: a comparable file containing the 2020 noisy measurement data.”  “Nor is it of any moment that the produced 2020 file removed confidential data that was included in the requested 2020 file.”  “It is standard practice for the Government to remove confidential data from documents produced pursuant to FOIA.”  “Accordingly, plaintiff substantially prevailed because the Court-approved Stipulation required the Government to produce a comparable file to the requested 2020 file by a date certain.”
  
  “Finally, because the Court finds that plaintiff substantially prevailed via judicial order, it declines to reach whether the Census Bureau voluntarily changed its position with respect to the requested 2010 file at this step of the analysis because partial relief is sufficient to find that plaintiff is eligible to recover attorneys’ fees and costs.”
   
• Attorney Fees, Entitlement:  The court holds that, “[w]eighing all the factors, the Court finds that plaintiff is not entitled to recover attorneys’ fees and costs.”  “The Census Bureau only contests factors one and four.”  “Therefore, the Court will only briefly address factors two and three.”  “Factors two and three, ‘which are often considered together,’ . . . plainly favor plaintiff because he is a professor with an academic interest in the requested files . . . .”
  
  Regarding factor one, the court finds that “[t]he Census Bureau, for its part, does not contest the public value of the files that plaintiff requested.”  “The requested files are valuable because they allow researchers to determine if the new algorithm, that the Census Bureau deployed to protect the confidentiality of information provided by census respondents, distorted the publicly reported Census data, which, in turn, could undermine the accuracy of subsequent research and ‘result in an inequitable distribution of political power and resources.’”  “However, the Census Bureau does dispute the effect of this lawsuit on its decision to release the files.”  “Here, the Census Bureau has provided persuasive evidence that it was intending to release files containing the noisy measurements data, like those requested by plaintiff, well in advance of plaintiff filing his FOIA request and lawsuit.”  “As early as 2019, the Census Bureau announced that it ‘intended to [eventually] release the noisy measurements in some format when it was deemed practical and helpful to do so.’”  “Then, in August 2021, 59 researchers requested that the Census Bureau release the noisy measurement files.”  “Within a month, the Census Bureau began taking steps to determine how to comply with the request and identified three challenges that would need to be overcome in order to release those file[s], namely how to protect respondent’s confidential information, how to make the files it ultimately released user friendly, and how to communicate the difference between the data in the noisy measurement files and the publicly reported data in the Census to ensure the data would be used properly.”  “The process to address these challenges took time and continued into 2022.”  “Importantly, all of these actions predated plaintiff’s FOIA request, filed in July 2022, . . . and thus also necessarily predated the filing of this lawsuit in October 2022.”  “Plaintiff, for his part, cannot point to any concrete evidence that his FOIA request or lawsuit was the catalyst for the Census Bureau ultimately releasing the two noisy measurement files that it did.”  “This is thus no more than a case of plaintiff being in the right place at the right time.”  “Accordingly, the Court finds that factor one favors the Census Bureau and strongly militates against awarding plaintiff costs and fees.”
  
  Regarding factor four, the court finds that “[f]irst, it was reasonable for the Census Bureau to deny plaintiff’s request to release the 2010 file because it had previously been deleted.”  “The 2010 file that plaintiff requested had been deleted in March 2022, prior to plaintiff’s FOIA request, because of the expense associated with maintaining a file of that size.”  “Because the 2010 file had been deleted, the Census Bureau was not obligated to produce that file pursuant to FOIA.”  “Furthermore, as the Government correctly points out, its decision to recreate a comparable file to the requested 2010 file does not reflect an obligation imposed on the Census Bureau under FOIA.”  “Instead, the Census Bureau’s decision to recreate the file was a recognition of the academic importance of such a file.”  “Plaintiff, for his part, does not dispute the reasonableness of the Census Bureau’s decision to deny his request to disclose the 2010 file.”  “Accordingly, the Court finds the Census Bureau’s decision to withhold the requested 2010 file is reasonable.”  “Second, it was reasonable for the Census Bureau to deny plaintiff’s request to release the 2020 file because it fell within the parameters of FOIA Exemption 3.”  “As relevant here, the Census Bureau contended that the 2020 file was not subject to disclosure pursuant to Sections 8(b) and 9 of the Census Act.”  “Specifically, those statutory provisions prohibit the Census Bureau from ‘furnish[ing] copies of tabulations and other statistical materials which . . . disclose the information reported by, or on behalf of, any particular respondent,’ . . . or generally from ‘mak[ing] any publication whereby the data furnished by any particular establishment or individual under this title can be identified[]’ . . . .”  “As [defendant’s declaration] explains, which is ‘accorded a presumption of good faith,’ . . . the commingled confidential data (which was ultimately removed from the 2020 file that was released) and the noisy measurements themselves could not be disclosed under these statutory provisions.”  “Accordingly, the Court finds that the Census Bureau had a reasonable basis for refusing to produce both the 2010 and 2020 files.”  “Therefore, this factor weighs heavily in favor of the Census Bureau.”