ELR Citation: ELR 20228
No(s). 92-5174 (D.C. Cir. Dec 28, 1993)

The court reverses and remands a district court's award of $44,373 in attorney fees and costs to an environmental group that obtained data on public pesticide use in Maryland from the U.S. Department of Agriculture (USDA) under §552(a)(4)(E) of the Freedom of Information Act (FOIA). The USDA initially denied the group's FOIA request for the data, which came from surveys completed by Maryland state agencies. The USDA had guaranteed the agencies confidentiality under 7 U.S.C. §2276(a), which prohibits disclosure of survey information that will identify the respondent. The environmental group filed suit to compel disclosure and the district court ordered the affected state agencies to file objections to the survey information's release. All the agencies eventually waived their confidentiality interests, and the USDA released the information. The district court then granted the group's request for attorney fees and costs under §552(a)(4)(E), holding that the group would not have been successful in obtaining the information without the suit and that the suit benefitted the public.

The court first holds that the group was eligible for fees as a "substantially prevailing" party, because the group reasonably believed the suit was necessary to obtain disclosure, and the suit did in fact cause the information's release through judicial intervention. The court next holds, however, that the group is not entitled to the fees if the government had a reasonable basis for withholding the information, an issue that the district court did not consider. The court remands, instructing the district court to determine whether the USDA's position was legally correct; if so, the group is not entitled to recover fees. If the USDA's position is incorrect, however, the district court must weigh the position's unquestionable reasonableness with other factors that determine entitlement. Finally, the court holds that government counsel and USDA officials were not guilty of obdurate conduct.

Counsel for Appellee
Ann Powers
Chesapeake Bay Foundation
162 Prince George St., Annapolis MD 21401
(301) 261-2350

Counsel for Appellant
Charles F. Flynn, Ass't U.S. Attorney
U.S. Attorney's Office
5806 Judiciary Ctr. Bldg.
555 4th St. NW, Washington DC 20001
(202) 514-7566

Before: WALD, EDWARDS, and SENTELLE, Circuit Judges.