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What’s In a Name?

by Harry Hammitt on October 30th, 2013

By Harry Hammitt
Editor/Publisher, Access Reports

The name or affiliation used when submitting a FOIA request is something that can have serious unintended consequences for the requester and, thus, is a strategic decision requesters need to consider before committing themselves.  Two recent cases from the U.S. District Court for the District of Columbia provide a good illustration of what can happen when an agency questions the identity of the requester.  Although the cases are not related to each other, they involve the same requester—Public Employees for Environmental Responsibility (PEER), a public interest group that represents employees in whistleblower actions as well as making FOIA requests in its own name.  In PEER v. Dept. of Commerce, 2013 WL 4830966 (D.D.C.), the National Marine Fisheries Service (NMFS) argued PEER was not the official requester for records about an agency contract employee, even though the email request was signed by PEER’s executive director.  Instead, the agency contended that since PEER had made the request on behalf of Jonathan Lee Combs, the former contract employee, he was the actual requester.  As a result, the agency asserted that PEER could not challenge the agency’s denial of its fee waiver request because it was not the requester.  In the second case, PEER v. U.S. International Boundary and Water Commission, 2013 WL 4830915 (D.D.C.), the International Boundary and Water Commission (IBWC) argued that PEER was not entitled to $40,000 in attorney’s fees because $32,000 of that fee request was attributable to work done by Robert McCarthy, a former IBWC attorney PEER had represented in his whistleblower action against the agency.  IBWC argued that McCarthy was essentially representing himself and pro se attorneys were not eligible for attorney fee awards.

Neither of these issues had been litigated before in quite this context, but there is enough case law on who is the proper party in the FOIA context to suggest that neither agency claim was completely off the wall.  Nevertheless, in both cases the district court judge rejected the agency argument.  In PEER v. Dept. of Commerce, Judge Amy Berman Jackson rejected the agency’s contention that Combs, not PEER, was the actual requester.  The thrust of the agency’s argument was twofold.  If the court found that Combs was the actual requester, PEER would not have standing to bring suit because since it was not a proper party it did not have a legal stake in the outcome of litigation.  But, further, if Combs was indeed the requester, it would be nearly impossible for him to show that he had the ability to disseminate the records sufficiently to qualify for a fee waiver, while PEER might well be in a better position to show that it had the ability to disseminate the records.  Rejecting the agency’s claim, Jackson pointed out that “NMFS’s apparent understanding that PEER was the FOIA requester at all times until PEER filed this lawsuit undercuts its assertion now that Combs is actually the FOIA requester.”  The agency argued that since the records were about Combs and requested on his behalf he was clearly the actual requester.  Jackson disagreed.  She noted that “while the Court agrees with the legal proposition that the requesting party is the individual named in the request, it does not agree with NMFS’s application of this proposition.  The plain language here. . .plainly indicates that PEER is the real party-in-interest.  The fact that the requested information pertains to a third-party individual does not deprive the requesting party of standing to challenge the agency action.”  However, after assessing the standards for receiving a fee waiver, Jackson concluded that PEER’s request did not qualify.  She observed that “here, PEER requests routine agency communications about a single individual in the [Fishery Observer] program and does not articulate exactly how these communications relate to general agency operations or the observer program as a whole.”

While the nuances of whether a requester is eligible for a fee waiver when one party requests records on behalf of another party may not arise very often, the question of who is eligible for attorney’s fees arises more frequently.  Under FOIA, a requester is eligible for attorney’s fees if he or she substantially prevails in litigation.  But an individual who represents himself, even if he is an attorney, is not eligible.  That means that if a requester plans to seek attorney’s fees he or she needs to have a separate attorney or sue in the name of an organization or institution.  In PEER v. U.S. International Water Boundary Commission, the agency argued that since Robert McCarthy was seeking records about his whistleblower action against the agency, PEER was acting as a front to allow him to recover attorney’s fees in the FOIA suit.  Judge Royce Lamberth, however, made it clear that the named parties in the lawsuit determined who was or was not eligible for attorney’s fees.  He emphasized that “it is only the party-in-interest—in other words, the party in whose name the action was brought by or against—that concerns the court; no one else is considered a pro se litigant for attorneys’-fees purposes.  Further, an organization cannot be a pro se litigant because it is always represented by counsel, be it in-house or other.”  Continuing, he pointed out that “here, McCarthy was not the party-in-interest, and IBWC cannot foist the pro se exception to attorney’s fees upon him just because he has an ‘interest.’”  He added that “even if we assume that McCarthy was interested in the underlying litigation and therefore not completely detached, this Court will not analyze levels of detachment to determine the applicability of the pro se exception.  If it did, other people for whose work attorney’s fees might not attach include parents, friends, or, quite frankly, anyone who cares deeply about the issues being litigated.”

The issue of who made the request has come up occasionally in the context of whether an employee can sue in the name of the company or organization.  In both Haskell Co. v. Dept. of Justice, 2006 U.S. Dist. LEXIS 12992 (D.D.C. Mar. 13, 2006), and SAE Productions v. FBI, 589 F. Supp. 2d 76 (D.D.C. 2008), the court found that a request made by the president of the company could not be litigated in the name of the company without sufficient evidence that the request was made on behalf of the company.  It is hard to tell how clear the connection must be.  In Three Forks Ranch Corp. v. Bureau of Land Management, 358 F. Supp. 2d 1 (D.D.C. 2005), the court dismissed a suit filed in the name of the corporation because the request had been signed by the attorney representing the corporation, even though the attorney said in the request letter that he was writing on behalf of the corporation.

Two attorney’s fees cases present interesting aspects of the consequences of the named requester.  In Burka v. Dept of Health and Human Services, 142 F.3d 1286 (D.C. Cir. 1998), Burka sued successfully for access to a database on teenage smoking habits.  But when he went back to court for attorney’s fees, the court concluded that he was ineligible as a pro se attorney.  He argued that he had an undisclosed client, but the court explained that because he brought suit in his own name he was the real party-in-interest.  Burka argued further that other attorneys at his law firm worked on the case and should be entitled to fees.  However, the court noted those attorneys worked under his direction and were not independent.  A variation on that question arose in Baker & Hostetler LLP v. Dept of Commerce, 473 F.3d 312 (D.C. Cir. 2006).  The law firm made a FOIA request for records concerning a trade dispute in which the firm represented several lumber companies.   When the law firm asked for attorney’s fees, the government argued it could not be compensated for representing itself.  The D.C. Circuit disagreed, noting that “an attorney who works for a law firm certainly is no less independent than an attorney who works for a corporation.”

Most FOIA requesters do not spend much time thinking about the potential consequences of a named requester.  But when a request is likely to end up in litigation, the importance of having thought about the impact the requester’s identity may or may not have is something well-worth considering.

From → FOIA, Reports

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