Fees After Victory in Cybersecurity FOIA Case

     (CN) – A nonprofit group is entitled to attorney fees from the government for its efforts to obtain a presidential order on cybersecurity, a federal judge ruled.
     The Electronic Privacy Information Center filed a Freedom of Information Act request in 2009, seeking information on National Security Presidential Directive 54, a cybersecurity order from President George W. Bush.
     U.S. District Judge Beryl Howell decided in favor of the National Security Agency’s withholding of the partially-classified document in October 2013, ruling that NPSD 54 was not an agency record subject to FOIA because it did not originate with the NSA.
     In her 2013 ruling, Howell said the nonprofit made a strong case for public interest in the release of the presidential directive but held that legal precedent did not allow for the document’s release.
     Despite accepting a $3,500 offer of judgment from the NSA in January 2014 for attorney fees and other costs, EPIC filed a brief the next month in D.C. appeals court, according to this week’s ruling.
     The NSA released an unclassified version of NSPD 54 to EPIC in June 2014, effectively ending the appeal. A few days later, the parties filed a joint motion to vacate part of a prior ruling that held NSPD 54 was not an agency record, and that joint motion was later granted.
     On Wednesday, Howell granted in part EPIC’s motion for attorney fees, ordering the NSA to pay the prevailing party $31,000. The judge ruled that EPIC was the prevailing party because the original determination that NSPD 54 was not an agency record was vacated.
     EPIC asked for $68,000 in attorney fees but Howell deducted $37,000, excluding fees incurred before the NSA offered the $3,500 judgment and after EPIC began submitting “exploding” settlement offers on the eve of court deadlines.
     “All fees and costs incurred prior to January 27, 2014 are covered by the January judgment and therefore disallowed,” Howell wrote. “The court also disallows all fees incurred on and after October 1, 2014, when the plaintiff engaged in what can be charitably described as ‘sharp practice’ in its submission of offers to the defendant that ‘exploded’ after the submission of status reports to the court indicating potential progress in negotiations.”
     Howell questioned the exploding settlement offers, calling such behavior “troubling.”
     “Disturbingly, both offers of judgment from the plaintiff were extended within 24 hours of a deadline for a submission to the court regarding the status of settlement discussions,” the judge wrote. “Thus, it would appear that these efforts were extended for the express purpose of allowing the parties to make representations to the court that were true at the time the required submissions were made, and were then withdrawn almost immediately after the submission was filed.”

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