Case Detail

FOIA Project Annotation: A federal court in New York has ruled that the New York Times in entitled to nearly $52,000 in attorney's fees for its FOIA litigation against the CIA to force the agency to disclose three reports about the presence of chemical weapons in Iraq. The agency initially issued a Glomar response neither confirming nor denying the existence of records. However, after the Times filed suit, the CIA withdrew its Glomar defense and released the reports with redactions. As a result of the CIA's actions, the parties withdrew their summary judgment motions as moot. The Times then filed a motion for attorney's fees. The CIA argued that the public interest in disclosure was limited because the public already knew about the agency's interest in chemical weapons. Judge Jed Rakoff rejected that claim, noting that "the CIA conflates its interest in concealing the fact of its investigation into chemical weapons in Iraqâ€"an end it sought to achieve with its Glomar responseâ€"with the public's very real interest in learning the results of that investigation, i.e., the contents of the reports." The CIA also relied on Brayton v. Office of U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011), to claim that a plaintiff was not entitled to attorney's fees if the agency's exemption claims would be upheld on summary judgment. Rakoff pointed out that "while this arguably is the position of the D.C. Circuit, there is no Second Circuit decision adopting it, and, indeed, such an approach would appear to be in some tension with the Second Circuit's characterization of the entitlement inquiry as 'weighing the four criteria.'" Instead, Rakoff criticized the agency for failing to acknowledge 'the clear import of Florez v. CIA, 829 F.3d 178 (2d Cir. 2016), which held that disclosures by one agency are relevant to the sufficiency of another agency's Glomar response," which "calls into question the reasonableness of the CIA's approach." The CIA challenged the amount requested by the Times. Rakoff agreed with several of its claims, reducing the total by $10,000. Rakoff, however, rejected the CIA's claim that the Times had benefitted more from a leak identifying the existence of the reports than by its litigation to force the agency to disclose them. Rakoff noted that the Times should not be penalized where "through its own efforts [a litigant] earns an advantage outside the courtroom that strengthens its position inside it. There is no reason in principle why the Times' successful investigative journalism warrants a lower award in the FOIA fee litigation, and the Court will not reduce fees on this account."
Issues: Litigation - Attorney's fees - Entitlement - Public benefit

Date Filed	Doc #	Docket Text
2016-04-26	1	COMPLAINT against Central Intelligence Agency. (Filing Fee $ 400.00, Receipt Number 0208-12231092)Document filed by The New York Times Company.(McCraw, David) (Entered: 04/26/2016)
2016-04-26	2	CIVIL COVER SHEET filed. (McCraw, David) (Entered: 04/26/2016)
2016-04-26	3	REQUEST FOR ISSUANCE OF SUMMONS as to Central Intelligence Agency, re: 1 Complaint. Document filed by The New York Times Company. (McCraw, David) (Entered: 04/26/2016)
2016-04-26	4	FILING ERROR - CORPORATE PARENT/OTHER AFFILIATE NOT ADDED - RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by The New York Times Company.(McCraw, David) Modified on 4/27/2016 (ldi). (Entered: 04/26/2016)
2016-04-27		***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney David Edward McCraw to RE-FILE Document 4 Rule 7.1 Corporate Disclosure Statement. ERROR(S): Corporate Parents/Other affiliates were not added. Please re-file this document and when prompted: Are there any corporate parents or other affiliates?, select the YES radio button and enter the Corporate Parent(s) or Affiliate(s). (ldi) (Entered: 04/27/2016)
2016-04-27	5	ELECTRONIC SUMMONS ISSUED as to Central Intelligence Agency. (rch) (Entered: 04/27/2016)
2016-04-27		CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Jed S. Rakoff. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (rch) (Entered: 04/27/2016)
2016-04-27		Magistrate Judge Kevin Nathaniel Fox is so designated. (rch) (Entered: 04/27/2016)
2016-04-27		Case Designated ECF. (rch) (Entered: 04/27/2016)
2016-04-27	6	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Other Affiliate Grupo Finaciero Inbursa, S.A.B. de C.V. for The New York Times Company. Document filed by The New York Times Company.(McCraw, David) (Entered: 04/27/2016)
2016-04-27	7	NOTICE OF COURT CONFERENCE: The Honorable Jed S. Rakoff, U.S.D.J. has ordered that counsel for all parties attend a conference, at the time and place fixed below, for the purpose of case management and scheduling pursuant to Fed. R. Civ. P. 16. DATE AND PLACE OF CONFERENCE: 05-3-2016, AT THE UNITED STATES COURTHOUSE, 500 PEARL STREET, NEW YORK, N.Y. IN COURTROOM 14-B AT 3:30. SO ORDERED. Initial Conference set for 5/3/2016 at 03:30 PM in Courtroom 14B, 500 Pearl Street, New York, NY 10007 before Judge Jed S. Rakoff. (Signed by Judge Jed S. Rakoff on 4/27/2016) (ama) (Entered: 04/27/2016)
2016-04-27	8	NOTICE OF APPEARANCE by Tali Ravit Leinwand on behalf of The New York Times Company. (Leinwand, Tali) (Entered: 04/27/2016)
2016-04-28	9	NOTICE OF APPEARANCE by Leigh Aaron Wasserstrom on behalf of Central Intelligence Agency. (Wasserstrom, Leigh) (Entered: 04/28/2016)
2016-04-28		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 4/28/2016. (Kotowski, Linda) (Entered: 05/02/2016)
2016-04-28		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 4/28/2016. (Kotowski, Linda) (Entered: 05/02/2016)
2016-05-12		Minute Entry for proceedings held before Judge Jed S. Rakoff: Initial Pretrial Conference held on 5/12/2016. Argument set for cross motions on summary judgment on August 17, 2016 at 4:00pm (Kotowski, Linda) (Entered: 05/12/2016)
2016-05-13		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 5/13/2016. (Kotowski, Linda) (Entered: 05/17/2016)
2016-05-27	10	ANSWER to 1 Complaint. Document filed by Central Intelligence Agency.(Wasserstrom, Leigh) (Entered: 05/27/2016)
2016-06-13	11	MOTION for Summary Judgment . Document filed by Central Intelligence Agency.(Wasserstrom, Leigh) (Entered: 06/13/2016)
2016-06-13	12	MEMORANDUM OF LAW in Support re: 11 MOTION for Summary Judgment . . Document filed by Central Intelligence Agency. (Wasserstrom, Leigh) (Entered: 06/13/2016)
2016-06-13	13	DECLARATION of Antoinette D. Shiner in Support re: 11 MOTION for Summary Judgment .. Document filed by Central Intelligence Agency. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Wasserstrom, Leigh) (Entered: 06/13/2016)
2016-07-01	14	CROSS MOTION for Summary Judgment (Partial) . Document filed by The New York Times Company.(McCraw, David) (Entered: 07/01/2016)
2016-07-01	15	MEMORANDUM OF LAW in Support re: 14 CROSS MOTION for Summary Judgment (Partial) . . Document filed by The New York Times Company. (McCraw, David) (Entered: 07/01/2016)
2016-07-01	16	DECLARATION of David E. McCraw in Support re: 14 CROSS MOTION for Summary Judgment (Partial) .. Document filed by The New York Times Company. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(McCraw, David) (Entered: 07/01/2016)
2016-07-22	17	REPLY MEMORANDUM OF LAW in Support re: 11 MOTION for Summary Judgment . and in Opposition to Plaintiff's Cross-Motion for Summary Judgment . Document filed by Central Intelligence Agency. (Wasserstrom, Leigh) (Entered: 07/22/2016)
2016-07-25		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 7/25/2016. (Kotowski, Linda) (Entered: 07/27/2016)
2016-07-26	18	AMENDED REPLY MEMORANDUM OF LAW in Support re: 11 MOTION for Summary Judgment . and in Opposition to Plaintiff's Motion for Summary Judgment . Document filed by Central Intelligence Agency. (Wasserstrom, Leigh) (Entered: 07/26/2016)
2016-08-03	19	REPLY MEMORANDUM OF LAW in Support re: 14 CROSS MOTION for Summary Judgment (Partial) . . Document filed by The New York Times Company. (McCraw, David) (Entered: 08/03/2016)
2016-08-24		Minute Entry for proceedings held before Judge Jed S. Rakoff: Oral Argument held on 8/24/2016 re: 11 MOTION for Summary Judgment . filed by Central Intelligence Agency, 14 CROSS MOTION for Summary Judgment (Partial) . filed by The New York Times Company. (Kotowski, Linda) (Entered: 08/31/2016)
2016-08-26		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 8/26/2016. (Kotowski, Linda) (Entered: 08/31/2016)
2016-08-30	20	MOTION for Leave to File supplemental submission . Document filed by Central Intelligence Agency.(Wasserstrom, Leigh) (Entered: 08/30/2016)
2016-09-01	21	MEMORANDUM OF LAW in Opposition re: 20 MOTION for Leave to File supplemental submission . . Document filed by The New York Times Company. (McCraw, David) (Entered: 09/01/2016)
2016-09-06	22	ORDER granting 20 Motion for Leave to File Supplemental Submission. The defendant shall file its submission by no later than September 12, 2016. The Clerk of the Court is directed to close the motion at docket number 20.. (Signed by Judge Jed S. Rakoff on 9/2/2016) (cla) (Entered: 09/06/2016)
2016-09-09	23	NOTICE of Withdrawal of Counsel. Document filed by The New York Times Company. (McCraw, David) (Entered: 09/09/2016)
2016-09-09		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 9/9/2016. (Kotowski, Linda) (Entered: 09/15/2016)
2016-09-14		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 9/14/2016. (Kotowski, Linda) (Entered: 09/15/2016)
2016-09-15	24	MEMO ENDORSEMENT on re: 23 Notice (Other) filed by The New York Times Company. PLEASE TAKE NOTICE THAT, as of September 9, 2016, Tali Ravit Leinwand is no longer with the Legal Department of The New York Times Company and hereby withdraws her appearance as counsel for Plaintiff The New York Times Company in the above-captioned litigation and requests that her name be removed from the Court's and the parties service lists. SO ORDERED., Attorney Tali Ravit Leinwand terminated. (Signed by Judge Jed S. Rakoff on 9/14/2016) (ama) (Entered: 09/15/2016)
2016-09-19	25	JOINT STIPULATION: IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, Defendant Central Intelligence Agency (the "CIA"), by its attorney, Preet Bharara, United States Attorney for the Southern District of New York, and Plaintiff The New York Times Company ("The Times") that the CIA's motion for summary judgment and The Times's motion for partial summary judgment, Dkt. Nos.11 & 14, are hereby withdrawn. The CIA will provide a response to the Plaintiff's request under the Freedom of Information Act by October 19, 2016. The parties will provide a written status update to the Court on October 26, 2016. SO ORDERED., ( Responses due by 10/19/2016), Motions withdrawn: 11 MOTION for Summary Judgment . filed by Central Intelligence Agency, 14 CROSS MOTION for Summary Judgment (Partial) filed by The New York Times Company. (Signed by Judge Jed S. Rakoff on 9/16/2016) (ama) (Entered: 09/19/2016)
2016-09-21	26	TRANSCRIPT of Proceedings re: argument held on 8/24/2016 before Judge Jed S. Rakoff. Court Reporter/Transcriber: Paula Speer, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/17/2016. Redacted Transcript Deadline set for 10/27/2016. Release of Transcript Restriction set for 12/23/2016.(Siwik, Christine) (Entered: 09/21/2016)
2016-09-21	27	NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a argument proceeding held on 8/24/16 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Siwik, Christine) (Entered: 09/21/2016)
2016-10-19		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 10/19/2016. (Kotowski, Linda) (Entered: 10/20/2016)
2016-11-16	28	STATUS REPORT. Document filed by The New York Times Company.(McCraw, David) (Entered: 11/16/2016)
2016-11-21	29	MEMO ENDORSEMENT on re: 28 Status Report filed by The New York Times Company. ENDORSEMENT: SO ORDERED, but no further adjournments! (Cross Motions due by 1/18/2017., Motions due by 12/21/2016., Responses due by 2/8/2017, Replies due by 3/1/2017.) (Signed by Judge Jed S. Rakoff on 11/20/2016) (kl) (Entered: 11/21/2016)
2016-12-19		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 12/19/2016. (Kotowski, Linda) (Entered: 12/21/2016)
2016-12-21	30	ENDORSED LETTER addressed to Judge Jed S. Rakoff from David E. McCraw dated 12/20/2016 re: Extension of time to reach resolution regarding attorney's fees. ENDORSEMENT: SO ORDERED. (Signed by Judge Jed S. Rakoff on 12/20/2016) (kgo) (Entered: 12/21/2016)
2017-01-18		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 1/18/2017. (Kotowski, Linda) (Entered: 01/18/2017)
2017-01-25	31	MOTION for Attorney Fees and costs pursuant to 5 U.S.C. 552(a)(4)(E) . Document filed by The New York Times Company.(McCraw, David) (Entered: 01/25/2017)
2017-01-25	32	MEMORANDUM OF LAW in Support re: 31 MOTION for Attorney Fees and costs pursuant to 5 U.S.C. 552(a)(4)(E) . . Document filed by The New York Times Company. (McCraw, David) (Entered: 01/25/2017)
2017-01-25	33	DECLARATION of David E. McCraw in Support re: 31 MOTION for Attorney Fees and costs pursuant to 5 U.S.C. 552(a)(4)(E) .. Document filed by The New York Times Company. (Attachments: # 1 Exhibit Exhibit A)(McCraw, David) (Entered: 01/25/2017)
2017-01-25	34	DECLARATION of Chris Chivers in Support re: 31 MOTION for Attorney Fees and costs pursuant to 5 U.S.C. 552(a)(4)(E) .. Document filed by The New York Times Company. (McCraw, David) (Entered: 01/25/2017)
2017-02-08	35	MEMORANDUM OF LAW in Opposition re: 31 MOTION for Attorney Fees and costs pursuant to 5 U.S.C. 552(a)(4)(E) . . Document filed by Central Intelligence Agency. (Wasserstrom, Leigh) (Entered: 02/08/2017)
2017-02-08	36	DECLARATION of Antoinette B. Shiner in Opposition re: 31 MOTION for Attorney Fees and costs pursuant to 5 U.S.C. 552(a)(4)(E) .. Document filed by Central Intelligence Agency. (Wasserstrom, Leigh) (Entered: 02/08/2017)
2017-02-15	37	REPLY MEMORANDUM OF LAW in Support re: 31 MOTION for Attorney Fees and costs pursuant to 5 U.S.C. 552(a)(4)(E) . . Document filed by The New York Times Company. (McCraw, David) (Entered: 02/15/2017)
2017-05-02	38	OPINION AND ORDER: The Times' motion for attorney's fees and costs is hereby granted, and The Times is awarded $51,909.86. The Clerk of Court is directed to close docket entry 31, and as further set forth. (Signed by Judge Jed S. Rakoff on 5/1/2017) (ras) (Entered: 05/02/2017)
2017-05-03	39	ORDER: The parties having withdrawn their respective motions for summary judgment, see Joint Stipulation dated Sept. 16, 2016, ECF No. 25, and the Court having determined the only remaining issue in the case, viz., the issue of attorney's fees, see Opinion and Order dated May 1, 2017, ECF No. 38, the Clerk of Court is directed to close the case. (Signed by Judge Jed S. Rakoff on 5/2/2017) (mro) (Entered: 05/03/2017)
2017-05-03		Terminate Transcript Deadlines (mro) (Entered: 05/03/2017)
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