Siegelman v. United States Department of Justice et al
MEMORANDUM OPINION - For the reasons stated, the Court grants Mr. Siegelmans motion for an award of attorneys fees and litigation costs. The Court instructs the parties to confer and to try to agree on a modest payment of fees and costs. If the par ties cannot agree, then Mr. Siegelman may filed an amended petition for fees and costs, consistent with the analysis in this opinion. If Mr. Siegelman files an amended fee petition, then the Court will set a deadline for OPR to respond to the updated petition. Signed by Judge Madeline Hughes Haikala on 4/8/2019. (KEK)
2019 Apr-08 PM 01:54
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
UNITED STATES DEPARTMENT
OF JUSTICE, OFFICE OF
Case No.: 2:16-CV-00083-MHH
This case arises under the Freedom of Information Act. 5 U.S.C. § 552.
Plaintiff Joseph Siegelman filed this action after the Department of Justice denied
his administrative request for the production of the Office of Professional
Responsibility‘s report of its investigation regarding the prosecution of former
Alabama Governor Donald Siegelman.1 Following the Court‘s in camera review
of the report of investigation (commonly called an ROI), OPR produced the nonexempt portions of the ROI to Mr. Siegelman.
The Court then
dismissed Mr. Siegelman‘s complaint as moot because OPR produced the nonprotected portions of the ROI. (Doc. 28, p. 2).
For the sake of clarity in this opinion, the Court refers to plaintiff Joseph Siegelman as ―Mr.
Siegelman‖ and refers to former Governor Siegelman as ―Governor Siegelman.‖
Mr. Siegelman has filed a motion for attorney fees and costs. He asserts that
he may recover fees and costs because he is the prevailing party in this action.
(Doc. 29). For the reasons discussed below, the Court grants Mr. Siegelman‘s
motion and provides directions to the parties concerning the assessment of fees.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY2
OPR investigates allegations of DOJ attorney misconduct. (Doc. 15-2, pp.
2-3, ¶ 3). On June 12, 2015, Joseph Siegelman emailed OPR and requested the
ROI concerning OPR‘s investigation of potential prosecutorial misconduct relating
to the United States‘ prosecution of former Alabama Governor Siegelman. (Doc.
15-2, p. 19; Doc. 23, pp. 5-6). The ROI is 157 pages long. (Doc. 15-2, pp. 11-15).
OPR responded to Mr. Siegelman on June 18, 2015. OPR stated that it would not
release the ROI because the ROI was subject to FOIA exemptions 5, 6, and 7(C).
(Doc. 15-2, pp. 21-23). OPR withheld the ROI in its entirety. (Doc. 15-2, p. 4, ¶
On July 14, 2015, Mr. Siegelman appealed OPR‘s decision to the DOJ‘s
Office of Information Policy. (Doc. 15-2, p. 4, ¶ 8). On September 28, 2015, OIP
affirmed OPR‘s decision ―to withhold the ROI in its entirety pursuant to FOIA
exemptions 5, 6, and 7(C).‖ (Doc. 15-2, p. 4, ¶ 10; see also Doc. 15-2, pp. 32-33).
The Court‘s opinion resolving the parties‘ motions for summary judgment includes a full
account of the circumstances surrounding Mr. Siegelman‘s request for the ROI. (Doc. 23, pp. 47). The Court includes in this opinion only the procedural history and facts relevant to Mr.
Siegelman‘s motion for fees and costs.
Mr. Siegelman then filed this action. (Doc. 1). Mr. Siegelman and OPR
filed cross motions for summary judgment. (Docs. 15, 17). In support of his
motion for summary judgment, Mr. Siegelman offered a host of exhibits to support
his argument that ―bad faith by Defendant U.S. Department of Justice‖ entitled him
to production of the ROI ―or, at a minimum, in camera review [of the ROI] by the
Court.‖ (Doc. 18-2, p. 1). (See Docs. 18-2 through 18-40). In support of its
motion for summary judgment, OPR filed the declaration of Ginae Barnett, a
member of OPR.
In the declaration, Ms. Barnett described the process for
evaluating a FOIA request and OPR‘s initial position with respect to Mr.
Siegelman‘s FOIA request and then provided ―a line-by-line segregability analysis
of the ROI.‖ (Doc. 15-2, p. 17, ¶ 36). Based on the segregability analysis, OPR
produced to Mr. Siegelman three pages from the ROI consisting of the title page
and OPR‘s analytical framework. (Doc. 15-2, p. 17, ¶ 36).
The Court denied both parties‘ summary judgment motions but granted Mr.
Siegelman‘s request for an in camera review of the ROI. (Doc. 23, p. 32). Based
on its in camera review of the ROI, the Court identified 34 pages of the ROI that
contain information that is not subject to FOIA exemptions. (Doc. 26, pp. 2-5).
The Court ordered OPR to show cause why OPR should not redact exempt
information from those 34 pages and produce the non-exempt information to Mr.
Siegelman. (Doc. 26, p. 5). On February 23, 2018, OPR produced the redacted
pages of the ROI to Mr. Siegelman. (Doc. 27, p. 2). The Court then dismissed Mr.
Siegelman‘s FOIA action as moot due to OPR‘s production of the redacted ROI.
Mr. Siegelman filed a motion for attorneys‘ fees and costs. (Doc. 29). In
the motion, Mr. Siegelman maintains that initiating this litigation caused OPR to
release ―factual portions of the ROI [that] would have remained forever secret….‖
(Doc. 30, p. 5). In its opposition to Mr. Siegelman‘s fee motion, OPR argues that
Mr. Siegelman is ineligible for fees under FOIA and that, even if he is eligible, he
is not entitled to fees. (Doc. 32, pp. 10-19). OPR also asserts that the fee award
Mr. Siegelman requests is unreasonable. (Doc. 32, pp. 20-31).
LEGAL STANDARD FOR FOIA ATTORNEYS’ FEE CLAIMS
The fee-shifting provision of FOIA states that a ―court may assess against
the United States reasonable attorney fees and other litigation costs reasonably
incurred in any case under this section in which the complainant has substantially
prevailed.‖ 5 U.S.C. § 552(a)(4)(E)(i).
Courts use a two-part framework to determine whether an award of
attorneys‘ fees and costs is appropriate. Abernethy v. I.R.S., 909 F. Supp. 1562,
1567-68 (N.D. Ga. 1995), aff’d, 108 F.3d 343 (11th Cir. 1997); Brayton v. Office
of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011). First, a
court must determine whether the FOIA complainant is ―eligible‖ for a fee award.
To be eligible, the complainant must have ―substantially prevailed‖ in the FOIA
action. 5 U.S.C. § 552(a)(4)(E). A complainant substantially prevails when he
obtains relief via ―(I) a judicial order, or an enforceable written agreement or
consent decree; or (II) a voluntary or unilateral change in position by the agency, if
the complainant‘s claim is not insubstantial.‖ 5 U.S.C. § 552(a)(4)(E).
If a court determines that a claimant is eligible for an award of attorneys‘
fees, then the court must decide whether the claimant is entitled to such an award.
Lovell v. Alderete, 630 F.2d 428, 431 (5th Cir. 1980) (―Once a plaintiff has
substantially prevailed and thus become eligible for an award of attorney‘s fees, a
court should determine whether the plaintiff is entitled to the award in light of
[four] criteria . . .‖);3 Brayton, 641 F.3d at 524 (if a court determines that a plaintiff
―substantially prevailed,‖ then ―the court proceeds to the entitlement prong and
considers a variety of factors to determine whether the plaintiff should receive
fees.‖) (emphasis in Brayton) (citation omitted). To determine whether a plaintiff
is entitled to fees and costs under FOIA, a court considers four factors: (1) the
public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3)
the nature of the plaintiff‘s interest in the records; and (4) the reasonableness of the
agency‘s withholding of the requested documents. Chilivis v. S.E.C., 673 F.2d
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit Court of Appeals adopted as binding precedent decisions that the Fifth Circuit Court of
Appeals issued prior to October 1, 1981.
1205, 1212 n.16 (11th Cir. 1982); Lovell, 630 F.2d at 431-32. A court ―may
consider any relevant equitable factors that may affect its balancing‖ of the criteria,
and a court must evaluate the criteria ―in light of the fundamental legislative
policies underlying‖ FOIA. Lovell, 630 F.2d at 431; see Nix v. United States, 572
F.2d 998, 1007 (4th Cir. 1978) (―[A]n award of attorney‘s fees is not automatic,
but is to be made where doing so will encourage fulfillment of the purposes of
If a court determines that a party is both eligible and entitled to receive fees,
then the party ―must submit his fee bill to the court for its scrutiny of the
reasonableness of (a) the number of hours expended and (b) the hourly fee
claimed.‖ Long v. U.S. I.R.S., 932 F.2d 1309, 1313-14 (9th Cir. 1991); Judicial
Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363 (D.C. Cir. 2006) (explaining
that district courts retain the discretion to modify a fee award based on the
reasonableness of the request and the particular facts of the case); see also Norman
v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988)
(―Occasionally, evidentiary hearings are necessary‖ when district courts evaluate
the reasonableness of attorneys‘ fees.).4 If the rate applied and total hours are
reasonable in light of the difficulty of the case and the skill of the attorneys
Norman involved a request for fees under § 1988. ―The fee shifting provisions of section 1988
and FOIA are substantially similar,‖ and ―the two statutes should [not] be interpreted
differently.‖ Ray v. U.S. Dep’t of Justice, 87 F.3d 1250, 1251 (11th Cir. 1996).
involved, then there is a ―strong presumption‖ that the claimed fee ―represents a
reasonable award.‖ Long, 932 F.2d at 1314. A district court awarding fees and
costs ―should provide a detailed account of how it arrive[d] at appropriate figures
for the number of hours reasonably expended and a reasonable hourly rate.‖ Long,
932 F.32d at 1314 (internal quotations omitted).
Mr. Siegelman asserts that he is eligible for an award of attorneys‘ fees
because the Court conducted an in camera review and subsequently issued a show
cause order that led OPR to release 34 redacted pages of the ROI. (Doc. 30, p. 5).
OPR argues that Mr. Siegelman is not eligible for an award of attorney‘s fees
because there is no court order constituting judicial relief, and the release of only
34 pages is insubstantial. (Doc. 32, pp. 10-11).
Although OPR correctly asserts that the Court did not unconditionally order
the release of the 34 redacted pages of the ROI, OPR‘s argument is based on a
snapshot taken from the claimant‘s protracted effort to obtain the ROI and this
Court‘s orders relating to that effort. When Mr. Siegelman first requested the ROI
in June of 2015, within one week, OPR notified Mr. Siegelman of its decision to
withhold the ROI in its entirety. When Mr. Siegelman appealed OPR‘s decision
administratively, OIP affirmed OPR‘s decision to withhold the ROI in its entirety
pursuant to three FOIA exemptions. After Mr. Siegelman filed this lawsuit, on
July 26, 2016 (more than one year after Mr. Siegelman requested the ROI), OPR,
having made ―a line-by-line segregability analysis of the ROI,‖ voluntarily
produced to Mr. Siegelman three pages from the ROI consisting of the title page
and OPR‘s analytical framework.
After evaluating the declaration that OPR
presented in support of its decision to release only three pages of the ROI, the
Court likewise made a line-by-line segregability analysis of the ROI and issued a
five-page order detailing the information in the ROI that was not subject to the
exemptions on which OPR based its decision to withhold everything other than the
title page and OPR‘s analytical framework. The Court ordered OPR ―to SHOW
CAUSE by February 23, 2018 why the portions of the report identified above are
subject to the FOIA exemptions claimed and cannot be segregated and produced,
or to produce those portions of the report to the plaintiff.‖ (Doc. 26, p. 5). Nearly
three years after Mr. Siegelman requested the ROI, OPR produced 34 redacted
pages to Mr. Siegelman on February 23, 2018. (Doc. 26, p. 5; Doc. 27).
On this record, the absence of an unconditional order does not render Mr.
Siegelman ineligible for an award of fees. In a decision on which the Court of
Appeals relied in Lovell, the Circuit Court of Appeals for the District of Columbia
It is true that a court order compelling disclosure of information is not
a condition precedent to an award of fees, Foster v. Boorstin, 182
U.S.App.D.C. 342, 344, 561 F.2d 340, 342 (1977); Nationwide
Building Maintenance, Inc. v. Sampson, 182 U.S.App.D.C. 83, 87, 89,
559 F.2d 704, 708-10 (1977), but it is equally true that an allegedly
prevailing complainant must assert something more than Post hoc,
ergo propter hoc, Vermont Low Income Advocacy Council, Inc. v.
Usery, 546 F.2d 509, 514 (2d Cir. 1976). Instead, the party seeking
such fees in the absence of a court order must show that prosecution
of the action could reasonably be regarded as necessary to obtain the
information, Vermont Low Income Advocacy Council, Inc. v. Usery,
supra at 513, and that a causal nexus exists between that action and
the agency‘s surrender of the information, Cuneo v. Rumsfeld, supra
180 U.S.App.D.C. at 190, 553 F.2d at 1366. Whether a party has
made such a showing in a particular case is a factual determination
that is within the province of the district court to resolve. In making
this determination, it is appropriate for the district court to consider,
Inter alia, whether the agency, upon actual and reasonable notice of
the request, made a good faith effort to search out material and to pass
on whether it should be disclosed.
Cox v. U.S. Dep’t of Justice, 601 F.2d 1, 6 (D.C. Cir. 1979).
In this case, Mr. Siegelman‘s prosecution of this action may reasonably be
regarded as necessary to obtain the three pages of the ROI that OPR disclosed in
2016 and the 34 pages of the ROI that OPR produced in 2018. OPR, upon actual
and reasonable notice of Mr. Siegelman‘s request for the report in 2015, withheld
the report in its entirety, and OIP affirmed OPR‘s decision, all within a few
months‘ time. It does not appear that OPR conducted a segregation analysis until
the summary judgment stage in this litigation. Thus, this litigation caused OPR to
make a good faith effort to search through the ROI and determine whether
information in the ROI should be disclosed. See Conservation Force v. Jewell,
160 F. Supp. 3d 194, 205-06 (D.D.C. 2016) (explaining that claimants may recover
attorneys‘ fees when the government determines that the sought-after information
could be released while preparing its motion for summary judgment months after
closing the administrative review of the ROI or when the government ―reversed
course on previous exemption assertions‖ during the litigation). And this Court
ordered OPR to produce information appearing on 34 pages of the ROI if OPR
could not show good cause for withholding the information.
information from those 34 pages only after the Court issued a show cause order.
Thus, Mr. Siegelman substantially prevailed in this action per 5 U.S.C. §
552(a)(4)(E)(i). See, e.g. Knuckles v. Dep’t of the Army, No. CV 115-077, 2016
WL 3947615 (S.D. Ga. July 19, 2016) (where agency produced information more
than one year after claimant requested the information and four months after
claimant filed suit, claimant substantially prevailed).5
In 2007, Congress added 5 U.S.C. § 552(a)(4)(E)(ii) to the FOIA fee provision ―‗to prevent
federal agencies from denying meritorious FOIA requests, only to voluntarily comply with a
request ... to avoid liability for litigation costs.‘ Warren v. Colvin, 744 F.3d 841, 845 (2d Cir.
2014) (reversing the district court and finding a plaintiff entitled to costs where he filed a FOIA
suit after a series of unsuccessful requests and the defendant voluntarily released the documents
after the plaintiff initiated the suit).‖ Knuckles, 2016 WL 3947615 at *4. Even if OPR‘s change
in position with respect to the 37 pages that OPR ultimately produced could be characterized as
―voluntary or unilateral‖ under § 552(a)(4)(E)(ii), the Court still would find that Mr. Siegelman
substantially prevailed because his claim is not insubstantial. As discussed in previous orders,
the subject of the OPR investigation is a matter of public concern. ―[T]he degree of the
plaintiff‘s success in relation to the other goals of the lawsuit is a factor critical to the
determination of the size of a reasonable fee, not to eligibility for a fee award at all.‖ Tex. St.
Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790 (1989) (emphasis in original).
Because Mr. Siegelman is eligible for an award of fees and costs, the Court
must consider whether he is entitled to an award of fees and costs based on the
benefit to the public resulting from the FOIA request, the nature of the plaintiff‘s
interest in the information, and the reasonableness of the Government‘s
justifications for nondisclosure. In making this determination, the Court must be
mindful of relevant equitable considerations and the legislative purpose of FOIA.
With respect to legislative purpose, as this Court previously has stated,
FOIA is ―a broad disclosure statute which evidences a ‗strong public policy in
favor of public access to information in the possession of federal agencies.‘‖
Cochran v. United States, 770 F.2d 949, 954 (11th Cir. 1985) (quoting Brown v.
F.B.I., 658 F.2d 71, 73 (2d Cir. 1981)); see also 5 U.S.C. § 552(a). ―However,
‗Congress realized that legitimate governmental and private interests could be
harmed by release of certain types of information,‘ . . . and provided for certain
exceptions to the rule of broad disclosure.‖ News-Press v. United States Dep’t of
Homeland Sec., 489 F.3d 1173, 1191 (11th Cir. 2007) (quoting F.B.I. v. Abramson,
456 U.S. 615, 621 (1982)). Congress provided nine exemptions from disclosure in
FOIA. 5 U.S.C. § 552(b).
The FOIA exemptions ―are explicitly made exclusive . . . and must be
narrowly construed.‖ Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)
(citations omitted). Additionally, the ―exemptions do not obscure the basic policy
that disclosure, not secrecy, is the dominant objective of [FOIA].‖
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 7-8 (2001) (quoting
Rose, 425 U.S. at 361). In keeping with FOIA‘s objective of broad disclosure, if a
federal agency relies upon one of the nine statutory exemptions to withhold a
record, then the agency should produce ―any reasonably segregable portion‖ of the
record after redacting the portions of the record that are subject to the exemption
claimed. Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235,
1257 (11th Cir. 2008) (quoting 5 U.S.C. § 552(b)).
With this legislative framework in mind, the Court evaluates whether Mr.
Siegelman is entitled to an award of fees and costs.
Benefit to the Public
When determining the extent to which the public benefits from a FOIA
request, a court must ―evaluate the specific documents at issue‖ and determine
whether the plaintiff‘s lawsuit ―is likely to add to the fund of information that
citizens may use in making vital political choices.‖ Cotton v. Heyman, 63 F.3d
1115, 1120 (D.C. Cir. 1995). A court must assess ―the potential public value‖ of
the information sought, not the ―public value of the information received.‖ Davy v.
C.I.A., 550 F.3d 1155, 1159-60 (D.C. Cir. 2008). A FOIA request may have
potential public value even when ―the released documents appear to reveal little.‖
Morley v. C.I.A., 810 F.3d 841, 844 (D.C. Cir. 2016). ―[T]he public-benefit factor
requires an ex ante assessment of the potential public value of the information
requested, with little or no regard to whether any documents supplied prove to
advance the public interest.‖ Morley, 810 F.3d at 844. ―To have ‗potential public
value,‘ the request must have at least a modest probability of generating useful new
information about a matter of public concern.‖ Morley, 810 F.3d at 844. ―The
nature of the subject that the request seeks to illuminate is obviously important.‖
Morley, 810 F.3d at 844 (quoting Davy, 550 F.3d at 1159). Where the subject of
the FOIA request has garnered significant public attention and generated
substantial public discussion, ―showing potential public value is relatively easy.‖
Morley, 810 F.3d at 844.
The subject of the ROI in this case is a Justice Department internal
investigation of allegations that the United States‘ prosecution of Governor
Siegelman was ―selective and politically motivated.‖ (Doc. 15-2, p. 3). Based on
its investigation, the Department of Justice concluded that ―some employees had
exercised poor judgment with respect to discrete issues,‖ but the Department
―found that no employee had engaged in professional misconduct.‖ (Doc. 15-2, p.
3). The ROI contains ―factual findings, legal analysis, and recommendations‖
concerning the investigation. (Doc. 15-2, p. 2). The ROI contains some of the ―emails, intra-agency letters, internal memoranda, and notes‖ that OPR gathered
during its investigation.‖ (Doc. 15-2, p. 6). The ROI also includes ―details of case
strategy and other case and investigative details, all compiled in anticipation of‖
Governor Siegelman‘s prosecution. (Doc. 15-2, p. 7). ―On June 3, 2010, DOJ
provided to the U.S. House of Representatives Committee on the Judiciary a letter
summarizing OPR‘s investigation in response to a request by the Committee.‖
(Doc. 15-2, p. 16, ¶ 35). Given the subject of the ROI, the general description of
the contents of the ROI, the evidence which Mr. Siegelman offered which
demonstrates the public interest in the Siegelman prosecution, and the related
Congressional investigation, it is ―relatively easy‖ for Mr. Siegelman to
demonstrate the ―potential public value‖ of the FOIA request even though the
released portions of the ROI may reveal little.
Morley, 810 F.3d at 844.
Accordingly, the ―benefit to the public‖ factor supports a finding that Mr.
Siegelman is entitled to an award of attorneys‘ fees.
Commercial Benefit and Nature of Mr. Siegelman’s Interest
Courts often analyze the second factor, commercial benefit to the plaintiff,
and the third factor, the nature of the plaintiff‘s interest in the records, together to
determine whether the plaintiff has a ―sufficient private incentive to seek
disclosure of the documents without expecting to be compensated for it.‖
McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 711 (D.C. Cir. 2014) (internal
quotations and citation omitted).
An award of fees is meant for claimants
―motivated by scholarly, journalistic, or public interest concerns.‖
Responsible CFC Policy, Inc. v. Costle, 631 F. Supp. 1469, 1471 (D.D.C. 1986).
There is no evidence that suggests that Mr. Siegelman has a private
commercial interest in the ROI. OPR argues that that because Mr. Siegelman is
Governor Siegelman‘s son, Mr. Siegelman‘s interest in the ROI is purely personal.
(Doc. 32, pp. 15-17). The relationship between Mr. Siegelman and Governor
Siegelman cannot be overlooked in this analysis. As OPR pointed out in its brief,
in his opening brief urging the Court to order disclosure of the entire ROI, Mr.
Siegelman stated that he sought the ROI ―on behalf of his family.‖ (Doc. 18-1, p.
In his brief in opposition to OPR‘s motion for summary judgment, Mr.
Siegelman stated that Governor Siegelman ―appears to have been wrongfully
imprisoned,‖ and information in the ROI could ―provide strong basis for a 2255
motion.‖ (Doc. 19, pp. 6-7). Mr. Siegelman stated that he had ―a substantial need
for the information because, without it, he cannot make a colorful claim for relief
under § 2255, the only potential recourse remaining for Siegelman who will
otherwise continue to remain wrongfully incarcerated.‖ (Doc. 19, p. 7).
But there is more. Mr. Siegelman also argued that there was a strong public
interest in disclosure of the ROI. That interest concerns the integrity of the federal
criminal justice system. Mr. Siegelman posited: ―To suggest this case involves no
public interest would be to say there is no public interest in maintaining the right to
vote.‖ (Doc. 19, p. 17). Mr. Siegelman quoted Senator Grassley‘s admonition
regarding the use of criminal prosecutions to influence public elections:
While all criminal cases should be handled with the upmost of
professionalism, cases of this level of importance and publicity, where
elections can be swayed, should be shining examples of the best of the
(Doc. 19, p. 17) (quoting Hearing on the Special Counsel’s Report on the
Prosecution of Senator Ted Stevens: Hearings Before the United States Senate
Comm. on the Judiciary, 112th Cong. (2012) (Mar. 28, 2012)) (emphasis in Doc.
Mr. Siegelman stated that the Department of Justice announced the
indictment of Governor Siegelman two months after Governor Siegelman
announced his candidacy for the 2006 Alabama gubernatorial race, and the
Siegelman trial took place one month before the Democratic primary election.
(Doc. 19, pp. 18-19). Mr. Siegelman asserted: ―There is arguably no greater
public interest than free and fair elections, as it is the very essence of democracy.‖
(Doc. 19, p. 19); see also (Doc. 21).
Creating some ambiguity, Mr. Siegelman concluded his argument, stating:
―Through this FOIA action, plaintiff strives for clarity, not to free his father or as
some stalwart for his family, but to simply learn—on behalf of so many in this
state and beyond who want to know the truth and to see justice done in this case—
‗what [ou]r Government is up to.‘‖ (Doc. 19, p. 25). He continued: ―The OPR
report offers plaintiff no hope of exonerating his father; the conviction of Don
Siegelman has been upheld by the Eleventh Circuit, and the Supreme Court has
denied certiorari as to both the conviction of Don Siegelman itself as well as the
sentence imposed.‖ (Doc. 19, p. 25). In Mr. Siegelman‘s view, obtaining the
factual portions of the ROI ―would provide some closure to the people of Alabama,
and of the United States‖ to help them determine ―where the truth lies in this saga,‖
and release of the report no doubt would provide the same opportunity for some
closure to Mr. Siegelman and his family.
Thus, Mr. Siegelman‘s efforts seem to stem from mixed motives. He and
his family certainly have a private interest in the ROI, but Mr. Siegelman fairly
points out that the public also has a legitimate interest in OPR‘s investigation of
conduct that led OPR to conclude that ―some employees had exercised poor
judgment with respect to discrete issues‖ in the Siegelman prosecution. (Doc. 152, p. 3). ―The public is likely interested in assessing how and why the Department
of Justice exercises its prosecutorial discretion—particularly in regard to highprofile public figures.‖ Citizens for Responsibility & Ethics in Washington v.
United States Dep’t of Justice, 142 F. Supp. 3d 1, 7 (D.D.C. 2015) (quoting
Cotton, 63 F.3d at 1120). Thus, Mr. Siegelman‘s pursuit of the ROI ―‗is likely to
add to the fund of information that citizens may use in making vital political
choices.‘‖ 142 F. Supp. 3d at 7.
Because Mr. Siegelman has dual interests in the release of the ROI, some
private and some public, this factor weighs neither strongly for nor strongly against
a finding that Mr. Siegelman is entitled to fees.
Reasonableness of Government’s Justifications for Nondisclosure
The final factor in determining a plaintiff‘s entitlement to attorneys‘ fees
under FOIA is the reasonableness of the agency‘s withholdings. McKinley, 739
F.3d at 711. To determine the reasonableness of an agency‘s withholding, a court
must consider whether the agency‘s opposition to disclosure ―had a reasonable
basis in law‖ and whether the agency was ―recalcitrant in its opposition to a valid
claim or otherwise engaged in obdurate behavior.‘‖
Davy, 550 F.3d at 1162
(quoting LaSalle Extension Univ. v. F.T.C., 627 F.2d 481, 486 (D.C. Cir. 1980)).
The agency carries the burden of showing that it behaved reasonably. Davy, 550
F.3d at 1163.
As stated, ―[a]lthough privileged portions of documents may be withheld,
‗[a]ny reasonably segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are exempt under this
subsection.‘ 5 U.S.C. § 552(b).‖ Miccosukee Tribe, 516 F.3d at 1257. It is on this
point that OPR fails to meet its burden. OPR responded to Mr. Siegelman‘s FOIA
request by informing him that it was withholding the ROI in its entirety pursuant to
FOIA exemptions 5, 6, and 7(C). (Doc. 15-2, pp. 22-23) (citing 5 U.S.C. §§
522(b)(5), (6), (7)(c)). OPR provided its response within one week. At 157 pages,
the ROI is relatively short, so OPR could have conducted a segregability analysis
over the course of a few days, but there is no evidence of a segregability analysis.
OIP‘s response to Mr. Siegelman‘s appeal took just under three months, allowing
sufficient time for a segregability analysis, but again, there is no evidence that OIP
made a segregability analysis. (Doc. 15-2, pp. 32-33). OPR did not do that work
until the summary judgment stage of this litigation.
On July 26, 2016, OPR completed a segregability analysis and produced to
Mr. Siegelman the ROI‘s title page and the two pages of the ROI that discuss
OPR‘s analytical framework. (Doc. 15-2, p. 17, ¶ 36). In at least one other case,
OPR has segregated and produced from a ROI the pages that contain OPR‘s
analytical framework, Engberg v. U.S. Dep’t of Justice, No. 8:19-cv-1775-T23MAP, 2011 WL 4502079, at *2 (M.D. Fla. Aug. 12, 2011), report and
recommendation adopted, No. 8:10-cv-1775-T-23MAP, 2011 WL 4501388 (M.D.
Fla. Sept. 27, 2011). OPR has not explained why it did not provide those pages to
Mr. Siegelman when OPR first responded to his FOIA request.
Engberg provides an interesting comparison to this case.
plaintiff, a journalist, sought an OPR ROI concerning OPR‘s investigation of the
conduct of a former Assistant United States Attorney. 2011 WL 4502079, at *1.
OPR denied the plaintiff‘s request for the ROI based on FOIA exemptions 3, 5, 6,
and 7(C). 2011 WL 4502079, at *1-2. The district court determined that FOIA
exemptions 5, 6, and 7(C) provided a basis for OPR to withhold the bulk of the
information contained in the ROI and that segregation ―would prove impossible‖
because the factual material in the ROI was closely intertwined with the
deliberative material. 2011 WL 4502079, at *4-8.
In reaching a decision concerning OPR‘s obligation to make an effort to
segregate information relating the conduct of the AUSA, the Engberg court
balanced the difficulty in separating potentially non-exempt material from exempt
material against the likelihood that the excised material would add to public
knowledge, given the information that already had been published about the results
of the investigation. The Engberg court explained:
Del Fuoco‘s privacy interest is outweighed by the public interest in
disclosure. When a government official‘s actions constitute a
violation of the public trust, courts favor disclosure. Cochran, 770
F.2d at 956. That said, the difficulty here is parsing Del Fuoco's
material from exemption-covered material. Such an exercise, from the
perspective of my in camera review, would be difficult, if not
impossible. In the end, disclosing the withheld information must serve
the core purpose of the FOIA, i.e., contributing substantially to public
understanding of the operations or activities of the government.
News–Press, 489 F.3d at 1191. I find it difficult to conclude that
parsing Del Fuoco‘s information, assuming it were possible, would
add to the public‘s understanding given the information already
disclosed in the Shackelford Letter. That document states the EOUSA
―considered the role that is entrusted to an AUSA, the public trust that
must be protected, and the prominence of the position of AUSA;‖
found ―that the role of an AUSA is an extremely prominent position in
which even non-supervisory AUSAs must play an important role to
protect the integrity of the system and the public trust;‖ and
determined Del Fuoco had ―substantially and negatively impacted
[his] ability to perform at a satisfactory level in the USAO‖ and had
―seriously undermined the trust of the USAO, and negatively
impacted the reputation of the USAO in the law enforcement
community‖ by his conduct as detailed therein (Shackelford Letter,
pp. 10–11). In reaching this conclusion, the EOUSA relied on
information pertaining to Del Fuoco contained in the ROI (id., pp. 1–
9). Given the infeasibility of segregating Del Fuoco‘s information
contained in the ROI, the DOJ properly withheld that information
under Exemption 6.
2011 WL 4502079 at *7.
In this case, the record indicates that until Mr. Siegelman pressed the issue
by filing this lawsuit, OPR had disclosed nothing about its investigation. OPR
prepared a letter summarizing its investigation, and DOJ provided the letter to the
U.S. House of Representatives Committee on the Judiciary, but ―DOJ has not
disclosed the letter to any member of the public; nor has DOJ authorized the
Committee to do so.‖ (Doc. 15-2, p. 16, ¶ 36). ―DOJ has never publicly disclosed,
or authorized public disclosure of, the ROI or any portion of the ROI.‖ (Doc. 15-2,
p. 16, ¶ 36).6 Under these circumstances, given the subject of the ROI, OPR
should have conducted a segregability analysis in response to the June 2015 FOIA
request and should have disclosed the reasonably segregable portions of the report
– at a minimum the pages that OPR produced in July 2016. OPR‘s decision to
withhold most of the ROI was reasonable and was based in the law (see Doc. 23),
The U.S. House of Representatives Committee on the Judiciary issued a staff report concerning
its investigation. (Doc. 15-2, p. 10, ¶ 22).
but it was not reasonable for OPR to delay a segregability analysis until after Mr.
Siegelman filed his lawsuit. If OPR did, in fact, conduct a segregability analysis
before it filed its motion for summary judgment in this case, OPR has not proven
that it did so.7 This factor tilts slightly in favor of a finding that Mr. Siegelman is
entitled to an award of attorney fees.
The factors, in combination, demonstrate that Mr. Siegelman is entitled to an
award of attorneys‘ fees. The limited nature and qualitative value of the FOIA
disclosure in this case will impact the size, not the entitlement to, an award of fees.
C. Reasonableness of Fee Award Mr. Siegelman’s Requests
The Court may award an eligible and entitled plaintiff ―reasonable attorney
fees and other litigation costs.‖ 5 U.S.C. § 552(a)(4)(E)(i). Mr. Siegelman‘s
attorneys seek fees of $72,420 and $400 in costs. (Doc. 33, p. 15). On the record
in this case, the requested fees are excessive.
Although Mr. Siegelman‘s action prompted OPR to produce some
information, Mr. Siegelman‘s effort to obtain the entire ROI based on his bad faith
argument was not successful. As the Court has stated, ―persuasive authority from
other courts suggests that allegations of agency bad faith require closer scrutiny of
The record reflects that Mr. Siegelman initially made a FOIA request for the ROI in February
of 2014. OPR denied the request in November of 2014. (Doc. 15-2, p. 22). Given the months
that elapsed between the request and the answer, it is conceivable that OPR conducted a
segregability analysis in 2014. If OPR did conduct a segregability analysis in 2014, that analysis
might explain the absence of an early analysis with respect to Mr. Siegelman‘s 2015 FOIA
request. The record discloses little about the DOIA process in 2014.
the agency‘s reliance on FOIA exemptions, but mere allegations of bad faith do not
unlock sealed reports.‖ (Doc. 23, p. 9). And while the record indicates that OPR
did not ―ma[k]e a good faith effort to search out material and to pass on whether it
should be disclosed‖ until the summary judgment stage of this litigation, Cox, 601
F.2d at 6, the record also demonstrates that much of the information in the ROI
was subject to FOIA exemptions, leaving little substantive information eligible for
Under these circumstances, Mr. Siegelman is entitled to a modest award of
fees and costs. The Court instructs the parties to confer and to try to agree on a
modest payment of fees and costs. If the parties cannot agree, then Mr. Siegelman
may filed an amended petition for fees and costs, consistent with the analysis in
this opinion. If Mr. Siegelman files an amended fee petition, then the Court will
set a deadline for OPR to respond to the updated petition.
For the reasons stated, the Court grants Mr. Siegelman‘s motion for an
award of attorneys‘ fees and litigation costs. The parties shall proceed as directed.
DONE and ORDERED this April 8, 2019.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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