(CN) – Author Anthony Summers is not entitled to attorney fees in his battle with the FBI over records he sought for his book about disgraced former President Richard Nixon, the D.C. Circuit ruled.
The federal appeals court in Washington, D.C., upheld a trial judge’s opinion that Summers doesn’t qualify for attorney fees because he didn’t “prevail” in his Freedom of Information Act dispute.
Summers, who also wrote biographies on Marilyn Monroe and J. Edgar Hoover, sought FBI records relating to Nixon friend Bebe Rebozo for his book, “Arrogance of Power: The Secret World of Richard Nixon.” He then sued when the FBI didn’t timely comply with his request.
The FBI later offered up three names from a document in exchange for Summers’ voluntarily dismissal, and stipulated that the agreement was not an admission of Summers’ success.
Summers sued anyway, citing a 2007 revision to FOIA laws which stated that a FOIA plaintiff “substantially prevailed” if a federal agency changed its position on access.
He claimed the amendment retroactively applies to his 2005 settlement, making him eligible for attorneys’ fees as a prevailing party in a FOIA dispute.
But the 2007 changes came too late, the panel decided, adding that Congress did not intend for the revisions to apply retroactively.
To apply the 2007 revision “to facts predating its passage obviously would expose the government to increased liability for past conduct,” Judge Ginsburg wrote, and “there is no evidence of a ‘clear Congressional intent favoring such a result.'”