Davis v. Department of Justice

Freedom of Information Act / Attorney’s Fees for Substantially Prevailing Party

In this case, Public Citizen filed an amicus brief in support of a petition for a writ of certiorari on behalf of itself, the Electronic Frontier Foundation, Judicial Watch, and the National Security Archive. The question presented in the petition was:

Does the holding in Buckhannon Board & Home Care, Inc. v. West Virginia Department of Health & Human Resources, 534 U.S. 598 (2001), that the term “prevailing party” requires a judicially sanctioned change in the relationship of the parties in order to be eligible for an award of attorney’s fees and costs in two civil rights statutes extend to the Freedom of Information Act, 5 U.S.C. Sec. 552(a)(4)(E), which provides that a plaintiff who “substantially prevails” is eligible for fees?

Public Citizen’s brief argued that the Supreme Court should hear this case and allow FOIA requesters to receive attorney’s fees in FOIA cases in which the government releases the requested records before the court rules on the case. The Supreme Court denied the petition, but in the OPEN Government Act of 2007, Congress clarified that FOIA requesters can receive fees if the government voluntarily hands over the records before a court order.