FEC Owes D.C. Watchdog Six-Figure Legal Fees

(CN) – After it was found to have improperly withheld records from a watchdog group, the Federal Election Commission must pay more than $153,000 in attorneys’ fees, a federal judge ruled.
     Citizens for Responsibility and Ethics in Washington (CREW) had filed its May 7, 2011, request under the Freedom of Information Act for communications that three FEC officials had with certain other outside individuals or entities. CREW also sought the calendars and other records of meetings and appointments of the three commissioners.
     Though CREW ultimately agreed to exclude certain files from the FEC’s initial search, it claims to have reserved the right to revisit its full request after reviewing the redacted documents.
     In a subsequent federal complaint, CREW alleged that the commission failed to produce any documents in response to the FOIA request. The FEC did produce a batch of documents after the lawsuit was filed, and a federal judge awarded its summary judgment on Dec. 30, 2011, after finding that CREW had failed to exhaust administrative remedies.
     After a reversal by the D.C. Circuit last year, settlement discussions between the FEC and CREW led the commission to release a second batch of files.
     The parties stipulated to dismissal of the case on Aug. 12, 2013, and CREW then submitted a request for $123,000 in attorneys’ fees and costs.
     Earlier this year, U.S. Magistrate Judge John Facciola recommended awarding CREW more than $140,000, an amount that he said represented the total of all the fees CREW requested, even though that amount was different from the one initially requested in the motion.
     The FEC objected, arguing that CREW failed to show neither that it was eligible for or entitled to attorney fees, nor that its fees were reasonable.
     CREW not only opposed, but also asked the court to order the FEC to pay more than $20,000 extra to cover attorneys’ fees in responding to the objections.
     U.S. District Judge Colleen Kollar-Kotelly overruled the FEC’s objections Friday, brushing aside the claim that the FEC did not know that CREW requested more documents in its opposition to the commission’s motion to dismiss.
     “The court finds that the FEC did not act reasonably in withholding documents for two years identified in CREW’s opposition as documents that ‘the agency has failed to produce’ in its first batch of documents responsive to the narrowed search, and to which the FEC itself has asserted it had no legal basis to withhold,” Kollar-Kotelly wrote.
     CREW’s fee petition is neither vague nor insufficient, and CREW did not use “reconstructed timesheets” criticized by other courts in prior suits, the court found.
     “First, CREW’s successful appeal led to the FEC’s production of documents that were responsive to the mutually-agreed upon narrowed search over two years after the FEC was on notice of CREW’s objections,” Kollar-Kotelly wrote. “Second, CREW’s appeal not only ‘facilitate[s] citizen access to the courts to vindicate their statutory rights’ by clarifying what an agency must communicate as a ‘determination’ to a FOIA requester, but also aids the agency by explaining what it must do to fully comply with FOIA. Accordingly, the court shall not exercise its discretion to deny CREW’s fee request.”
     The court awarded CREW nearly $140,000, as Facciola recommended – plus more than $13,000 for fees incurred in responding to the FEC’s objections – for a total of more than $153,000.

%d bloggers like this: