Thursday, March 11, 2021

Law Professor Had "Serious Scholarly Interest" In IRS FOIA Litigation

The United States Court of Appeals for the District of Columbia Circuit has remanded to the district court in an appeal of a University of Denver law professor for fees in FOIA litigation against the Internal Revenue Service.

This case presents a recurring question in our court: under what circumstances is a prevailing plaintiff in a Freedom of Information Act (FOIA) case—here a law professor seeking information from the Internal Revenue Service—entitled to an award of attorney’s fees? The district court denied the professor’s request for fees. For the reasons set forth below, we vacate and remand for further proceedings consistent with this opinion. 

The law

In evaluating a fee petition, the district court assesses whether the plaintiff “substantially prevailed” within the meaning of the statute. 5 U.S.C. § 552(a)(4)(E)(i). Here, the district court found Kwoka had done so, a conclusion the IRS does not contest. But that is not enough. Because the statute provides that an eligible party “may” receive fees, the district court must also decide whether the plaintiff is “entitled” to a fee award. 

The court applied its four-factor test

In Davy v. CIA, we explained how factors two and three apply to scholars and journalists. “Congress did not intend for scholars (or journalists and public interest groups) to forgo compensation when acting within the scope of their professional roles.” Id. at 1161 (internal quotation marks omitted). Individuals like scholars and journalists who “gather[] information of potential interest to a segment of the public, use[] [their] editorial skills to turn the raw materials into a distinct work, and distribute[] that work to an audience” are “among those whom Congress intended to be favorably treated under FOIA’s fee provision.” Id. at 1161–62 (internal quotation marks omitted); see also id. at 1165 (Tatel, J., concurring) (“Always searching for information that the public will want to consume, journalists must surely be thought of as pursuing records in the public interest.”).

Scholarly bona fides

Kwoka undoubtedly has a serious, scholarly interest in how federal agencies administer FOIA. She has published articles about FOIA in the Yale and Duke Law Journals, see Margaret B. Kwoka, First-Person FOIA, 127 Yale L.J. 2204 (2018); Margaret B. Kwoka, FOIA, Inc., 65 Duke L.J. 1361 (2016), and her work has been cited by multiple circuit courts, see NLRB v. New Vista Nursing & Rehabilitation, 870 F.3d 113, 133 n.12 (3d Cir. 2017); Moffat v. U.S. Department of Justice, 716 F.3d 244, 254 n.10 (1st Cir. 2013), as well as our own district court, see National Security Counselors v. CIA, 960 F. Supp. 2d 101, 204 n.77 (D.D.C. 2013). Additionally, she has either testified about FOIA or presented her research to the Senate Judiciary Committee, the Securities and Exchange Commission’s FOIA Office, and the National Archives and Records Administration’s FOIA Advisory Committee, while also previously serving on the latter committee as Co-Chair of the Proactive Disclosures Subcommittee. And especially relevant here, she says that she will soon publish a book with Cambridge University Press featuring her analysis of the very information she obtained in this case.

As to IRS's good faith in denying information

To begin with, the IRS failed to give any logical explanation as to how someone could reliably infer taxpayer identities from the vast majority of the information Kwoka sought. As the district court pointed out, even many of the hypotheticals posed by the IRS made no sense on their own terms.

The need for remand

This, however, does not end the matter, as the district court never addressed the IRS’s other argument—that at the time of Kwoka’s initial request, it reasonably believed that segregating the exempt and non-exempt materials would impose an unreasonable burden.

...The district court, however, never answered the question critical to Kwoka’s fee request. Even though it found at the summary judgment stage that processing the records for redactions imposed no unreasonable burden, the question at the fee stage is whether the IRS “had a reasonable basis in law” when it “initially” concluded otherwise.

Circuit Judge Tatel authored the opinion. (Mike Frisch)

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what a refreshing opinion!

Posted by: Liz Ryan Cole | Mar 13, 2021 6:38:29 AM

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