each of which had had one sentence deleted pursuant to
exemption (b)(7)(C).[fn1b] Plaintiff had also requested
documents pursuant to the Privacy Act, 5 U.S.C. § 552a. We held
that our ruling under the FOIA had afforded plaintiff complete
relief with respect to FBI documents so that no FBI documents
remained for consideration under the Privacy Act, with the
possible exception of documents which might be revealed upon
further indexing. Plaintiff's complaint does not indicate that
any FBI documents requested under the Privacy Act were not also
requested under the FOIA. With respect to documents in the
possession of the United States Attorney's office, we ordered
the release of the one document revealed by defendants' search
of the documents in the office. Thus, other than issues arising
in connection with the further indexing, no issue of production
of documents under the Privacy Act remains.
As for the motions for further indexing, we again ordered
defendants to conduct additional searches and indexing of FBI
records. Defendants have now done so, and in an affidavit
dated April 12, 1979, and filed May 24, 1979, Special Agent
King discussed the procedure and results of the additional
search. King states that the FBI has released to plaintiff the
documents, with deletions pursuant to exemptions in the FOIA,
that were revealed upon further indexing and that were not
already released to plaintiff. Fourth King affidavit.
Plaintiff has not objected to the conduct or the results of
the additional indexing. Accordingly, we conclude that
plaintiff is satisfied with defendants' compliance with the
order for further indexing. Therefore, although plaintiff
represented to us at the status hearings in March that we
still had several issues to resolve, all such issues were
resolved either in the memorandum decision of January 30, 1979
or upon further indexing by defendants. Only the issue of
attorney's fees remains.[fn2a]
A FOIA plaintiff who substantially prevails is entitled to
attorney's fees. 5 U.S.C. § 552(a)(4)(E). Our decision awarded
plaintiff substantially all of the relief that he requested. We
ultimately ordered the FBI to release all of the material
deleted from the documents originally given to plaintiff. We
ordered further indexing, as plaintiff requested, and the
indexing turned up additional documents. Thus plaintiff has
Even if the plaintiff substantially prevails, however, we
still have the discretion to deny a motion for fees.
Defendants, in their opposition to plaintiff's motion, point
to four criteria which should guide the exercise of our
discretion in determining the appropriateness of a fee award.
These criteria, which are set out in the Senate Report on the
1974 amendments to the FOIA are: (1) the benefit to the public
derived from the case; (2) the commercial benefit to the
complainant; (3) the nature of the complainant's interest in
the records; and (4) whether the withholding had a reasonable
basis in law. See S.Rep. No. 93-854, 93rd Cong., 2d Sess. 17
(1974). The conference report on the 1974 amendments deleted
these four criteria, but only because the conferees concluded
that existing law on
attorney's fees embodied the criteria. Conf.Rep. 93-1200, 93rd
Cong., 2d Sess., 1974 U.S.Code Cong. & Admin.News, pp. 6285,
6288. Courts have cited the four criteria with approval.
See, e.g. Pope v. United States, 459 F. Supp. 426, 429 (S.D.Tex.
1977), aff'd 585 F.2d 502 (5th Cir. 1978), AFGE v. Rosen,
418 F. Supp. 205, 207 (N.D.Ill. 1976). Before applying these
criteria, we must emphasize that all four are relevant. Thus
even if we conclude, for example, that the public interest was
not benefitted by the case, we must consider the other three
criteria to determine whether the balance nevertheless weighs
in favor of awarding attorney's fees to the plaintiff. See Blue
v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978) (district
court abused discretion in considering only benefit to public).
Applying these criteria here, we must disagree with
defendants' assertion that the balance of the four standards
tips in favor of defendants. As for the benefit to the public
from the release of documents, we concluded in our memorandum
decision that a plaintiff vindicated a public interest by
attempting to prevent and discover illegal wiretaps through an
action under 18 U.S.C. § 2520. In this case, plaintiff needed
the withheld information to bring such an action. A finding of
this public interest was a prerequisite to our holding that
release of some of the deleted portions of the documents would
not constitute an unwarranted invasion of personal privacy so
as to render the information exempt from disclosure under
(b)(7)(C). We believe that the public interest which will
support release of the withheld material will also support an
award of attorney's fees. We must note, however, as we did in
our earlier memorandum decision, that plaintiff's interest in
the information exceeds any interest to be derived by the
public. This disparity will impact on our discretion in
assessing the amount of fees.
The second criteria is the commercial benefit to the
plaintiff. Such benefit is relevant because if it exists it
renders unnecessary the attorney's fee provision's purpose of
overcoming FOIA plaintiffs' reluctance to pay litigation costs
in order to vindicate their legitimate rights. See Cuneo v.
Rumsfeld, 180 U.S.App.D.C. 184, 553 F.2d 1360 (D.C. Cir. 1977).
As we have noted, plaintiff has a personal interest in the
documents, but this interest is a commercial one only to the
extent of a possible damage award in a civil action for illegal
wiretapping pursuant to 18 U.S.C. § 2520. But his commercial
interest must be deemed secondary to plaintiff's interest in
learning more about a possible wiretap on his phone. Moreover,
the prospect of a damage award under § 2520 would not be a
sufficient inducement for any plaintiff to shoulder the burden
of attorney's fees and costs.[fn4a] Plaintiff does have a
slight commercial benefit, which we will not ignore in
assessing fees. See MCA, Inc. v. IRS, 434 F. Supp. 212 (C.D.Cal.
The third factor is the nature of the complainant's interest
in the withheld documents. The Senate Report notes that a
court would award fees under this criterion "if the
complainant's interest in the information sought was scholarly
or journalistic or public-interest oriented, but would not do
so if his interest was of a frivolous or purely commercial
nature." S.Rep. No. 93-584, 93rd Cong., 2d Sess. 19 (1974). As
we have noted plaintiff's interest in the documents is to some
extent public-interest oriented. Moreover, because his
interest cannot be characterized as frivolous or purely
commercial, the third criterion favors plaintiff.
The final criterion is whether the government's withholding
of the records sought had a reasonable basis in law. For most
of the withholdings here, the government had precedential
authority for the exemptions claimed. But the existence of a
reasonable basis does not preclude an award of fees. Cuneo v.
Rumsfeld, supra, 180 U.S.App.D.C. at 190, 553 F.2d at 1366.
Moreover, although the defendants in general may have a
reasonable basis for withholding the type
of information deleted here, we found that in this particular
case none of the general concerns justifying an application of
the exemptions existed. Nevertheless, we cannot say that the
government's position was unreasonable.
We hold that the balance tips slightly in favor of plaintiff
on the first three criteria and slightly in favor of
defendants on the last. Plaintiff is therefore entitled to
fees. We also hold, however, that given the delicate balancing
required to come to this conclusion, the multiplier sought by
plaintiff is not appropriate here. Although plaintiff did
vindicate a public interest, the action was brought
predominantly for his personal benefit. Therefore plaintiff is
entitled to fees at the prevailing market rate for the number
of hours expended.
Although the number of hours contained in Mr. Haddix's
affidavit is a reasonable figure for an action of this type,
we do not yet have enough information to assess fees. Mr.
Haddix states that his associate, Mr. Hodge, spent time on the
case but did not file a petition for fees. Instead, Mr. Haddix
prorated Mr. Hodge's time and incorporated it into the Haddix
affidavit. We cannot determine the proper hourly rate for each
hour in the fee petition unless we know how many hours were
spent on the case by each attorney, inasmuch as the two
attorneys are likely to have different billing rates.
Moreover, we cannot determine the proper hourly rate for Mr.
Hodge's time unless we know the extent and nature of his
experience.[fn5a] Mr. Hodge is directed to submit in open
court within 14 days an affidavit indicating his background
and experience and how many of the 76.5 hours listed in the
original fee petition he expended on the case. When we have
this affidavit, we will determine the proper hourly rate for
both attorneys and we will enter a final judgment awarding