Legal Fees Fracas After Release of Drone Records

(CN) - Noting that its lawsuit prompted a 700-page release on the use of drones by Customs and Border Patrol, the Electronic Frontier Foundation said it deserves $84,000 in attorneys' fees.

The privacy-defending nonprofit sued the Department of Homeland Security in 2012 for information on, among other things, the policies that the department and its Border Patrol component had in place for domestic surveillance by unmanned aircraft.

Litigation freed up three years of redacted "daily reports" that revealed the department had arranged more than 500 flights for dozens of law-enforcement organizations, and that more than a fifth of these flights helped Immigration and Customs Enforcement, the Electronic Frontier Foundation (EFF) said.

The government has characterized the EFF's victory as "limited," however, and said the litigation's only victory was in clearing "administrative backlog."

In a June 25 opposition brief to the group's motion for attorneys' fees, Justice Department attorney Jennie Kneedler said that EFF has "not shown that this litigation, as opposed to an unavoidable backlog, caused the release of records after plaintiff filed suit."

"Plaintiff offers nothing more than pure conjecture to support its argument that its lawsuit caused CBP to release the records when they were released," Kneedler added, abbreviating Customs and Border Patrol. "To the contrary, there is no reason to believe that CBP would not have responded to plaintiff's FOIA request in the same way without litigation."

If the EFF is entitled to fees, the court should award it only 5 percent of the figure requested, or $2,951, the brief states.

The EFF replied Wednesday that the government "ignores the fact that the 2007 amendments to FOIA were passed explicitly to provide for fees when a plaintiff's lawsuit was a 'catalyst' that cause the agency to voluntarily change its position."

The government's argument that it might have released the requested documents on its own is purely supposition, the nonprofit added.

"While it may not be surprising that agencies, in general, suffer from administrative backlog, simply stating that in a brief does not prove that backlog was responsible for delaying CBP's response to plaintiff's FOIA request," the brief by EFF attorney Jennifer Lynch states. "It also does not disprove the fact that plaintiff's lawsuit was the catalyst for defendant to release these records."

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