Trump administration agrees to pay Public Integrity attorney’s fees after FOIA lawsuits

Introduction

Last week, the U.S. Department of Commerce agreed to settle two federal lawsuits and pay the Center for Public Integrity nearly $11,000 in attorney’s fees.

Public Integrity filed suit after Commerce failed to release documents that senior reporter Carrie Levine requested under the Freedom of Information Act.

Records obtained from Commerce contributed to Levine’s reporting on Secretary Wilbur Ross’s financial holdings, his potential conflicts of interest and his failure to divest certain assets as he had agreed. “The records showed the question of which assets Ross would be required to divest and how quickly was the subject of extensive negotiations between his lawyers and government ethics officials, which made the later omissions even more striking,” Levine said.

“The public ought to know what its government officials are doing outside of the spotlight,” said Public Integrity CEO Susan Smith Richardson. “Public Integrity persisted in court because we want to make it harder for those who are supposed to serve the public to keep us in the dark about their activities.”

Public Integrity filed suit in the first case, in November 2017, over 433 documents that Commerce was withholding in full and two FOIA requests that the Office of Government Ethics had not responded to. Both agencies eventually released records — Commerce releasing 415 documents in full or in part on the day that its written arguments were due in court, in June 2018, after “consultations with the White House.”

More than a year later, in August 2019, U.S. District Judge Emmet Sullivan ruled in Public Integrity’s favor on a narrow issue, requiring the agencies to release email “header” information (such as the “to,” “from” and “date” fields), which Public Integrity had specifically requested from Commerce before filing suit. Judge Sullivan ordered the agencies to submit new written arguments justifying their other withholdings.

In the second lawsuit, filed in May 2018, Commerce had not responded to a different FOIA request. Commerce then repeatedly missed the deadlines it set for itself to complete its response. After several delays, including the five-week partial government shutdown in December 2018 and January 2019, Judge Sullivan gave Commerce a deadline of May 1, 2019, and the agency complied.

By late 2019, Public Integrity decided not to litigate the remaining document redactions and withholdings. The parties began negotiating Public Integrity’s claim for attorney’s fees in the two cases and reached final agreement last week.

The government has agreed to pay Public Integrity $7,500 in the first case and $3,432 in the second. While OGE was a party to the first case, Public Integrity prevailed primarily against the Commerce Department, and so it appears that Commerce would have primary responsibility for the attorney fee’s award.

The payments will compensate Public Integrity for hours spent by staff attorney Peter Newbatt Smith on the two cases. Smith noted that, while the amounts are small compared to federal agencies’ budgets, “It’s widely believed that agency officials would like to avoid the stigma of paying attorney’s fees to FOIA requesters, so demanding payment in appropriate cases can give them an incentive to better comply with the law.”

The FOIA gives journalists and non-journalists alike the “right to request access to records from any federal agency” in the spirit of keeping Americans “in the know about their government.” By law, federal agencies are generally required to respond to FOIA requests within 20 business days. In the journalism field, Public Integrity is a leader in its use of FOIA litigation to obtain documents and data from government agencies. Among news media requesters, only The New York Times and Jason Leopold, now with Buzzfeed, have filed more FOIA lawsuits during the past two decades, according to a study by Syracuse University’s Transactional Records Research Clearinghouse.