Inside Publici

Published — June 4, 2018 Updated — June 5, 2018 at 7:44 am ET

After years-long FOIA battle, the Energy Department pays the Center for Public Integrity $5K in legal fees

Center sued for access to documents related to Inspector-General’s investigation

Introduction

The Center for Public Integrity, as a matter of policy, does not accept grants from the federal government. But the Center will accept compensation for the time and effort we put into fighting the government’s efforts to keep information from the public. And that’s what happened last month when the Center concluded a Freedom of Information Act lawsuit against the U.S. Department of Energy with an agreement that DOE pay the Center $5,000 in attorney fees.

The case began when the Center filed a lawsuit in August 2015 over a FOIA request for a report by DOE’s inspector general — a report on allegations against the Sandia Corporation, which then operated the Sandia National Laboratory in Albuquerque, New Mexico. The Center also requested a variety of other documents related to the IG’s investigation. In June 2015, DOE released a copy of the IG report to the Center but withheld the names of numerous federal officials and employees of Sandia and of its parent company, Lockheed Martin. The Center filed suit to challenge those redactions and because, nine months after the original FOIA request, DOE had turned over only one other document.

The timeliness of the government’s response is often at issue in FOIA matters. The act generally requires a complete response to a FOIA request within 20 business days, but many agencies don’t have enough resources budgeted to keep up with the volume of requests they receive. The only real penalty for missing the deadline is that, once it passes, the requester can go to court.

DOE did release hundreds of pages of records to the Center during the course of the lawsuit that it had failed to hand over before the legal action. The Office of the Inspector General found that Sandia had illegally used taxpayer money to hire former U.S. Rep. Heather Wilson and two other consultants as part of its efforts to lobby the Obama administration and key members of Congress for an extension of its management contract. Sandia in August 2015 agreed to repay the federal government $4.79 million to settle the allegations. In May 2017, President Donald Trump appointed Wilson as secretary of the Air Force.

U.S. District Judge Amit Mehta issued opinions in the Center’s FOIA case in January 2017 and January 2018, allowing many of the redactions that DOE had made in the released records but finding that in several instances the agency had improperly withheld names and other information that it had previously released publicly.

The judge ordered the parties to confer and attempt to negotiate a settlement of attorney fees. The Center and DOE eventually agreed on an amount of $5,000, representing approximately 10 hours of the total time expended by the Center’s attorney, Peter Newbatt Smith. U.S. Department of Justice guidelines suggest that an attorney of Smith’s experience can be awarded attorney fees of more than $500 per hour. The payment was split between two subagencies at Energy, the Office of the Inspector General and the National Nuclear Security Administration. The Center had received attorney fees in one previous FOIA case, $5,047 paid by the Federal Energy Regulatory Commission in 2007.

Reporters at the Center file hundreds of requests each year under the Freedom of Information Act and in most cases can obtain an adequate response without going to court. The Center has filed 27 FOIA lawsuits since 2000, making it one of the media organizations that sues under FOIA the most often. Of this recent settlement, Smith said, “Attorney fees are an important provision of FOIA and can be an incentive for federal agencies to improve their compliance with the law. Agencies can avoid paying attorney fees by releasing records that FOIA requires them to and especially by responding to FOIA requests within a reasonable time, so that a lawsuit isn’t necessary in the first place.”

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