Small Nonprofit Wins Fees After Records Victory

(CN) — The attorney whose small nonprofit won access to CIA and Defense Department records is entitled to $55,000 in fees, a federal judge ruled.

National Security Counselors, a nonprofit that investigates government activity related to national security, sued under the Freedom of Information Act, or FOIA, to access documents on the Central Intelligence Agency and U.S. Department of Defense's declassification program.

U.S. District Judge Rosemary Collyer eventually ruled against the agency, finding that it had improperly withheld documents on its "special procedure for the [mandatory declassification] review of information pertaining to intelligence activities ... or intelligence sources or methods' developed by the Director of Central Intelligence."

National Security Counselors thus succeeded in the lawsuit, but Collyer denied its request for attorney's fees in 2014. She concluded that that National Security Counselors is just one man, Kelly McClanahan, its CEO and attorney.

FOIA does not permit individual pro se petitioners to recover attorneys' fees.

Reversing Collyer's decision, the D.C. Circuit ruled in January that National Security Counselors is not, as Collyer found, a one-man show.

Though McClanahan plays a large role at the nonprofit, he is part of a trio who co-founded it and has a "distinct legal status" from the group, the court found. Collyer "effectively disregarded the corporate form without a legal or factual basis for doing so," the ruling stated.

Collyer partially granted National Security Counselor's request for attorney's fees Wednesday on remand.

The judge agreed that the nonprofit had prevailed in its case for the CIA and Department of Defense to release documents of public interest, and the agencies had shown no good cause for their delay in producing the information.

But she ruled the attorney fee request sets excessive hourly rates for McClanahan and co-counsel, includes hours for work on unsuccessful issues, and double bills for the same work.

"There are 32 billing entries for time spent by one attorney 'discussing case' with co-counsel. The entries are duplicative, as they bill on the same day for the same time period for both Mr. McClanahan's discussions with Mr. Moss as well as Mr. Moss's discussions with Mr. McClanahan. While conversation between co-counsel may be necessary and productive at times, the high number of such entries reveals duplicative and non-productive attorney work," Collyer wrote in the 15-page ruling.

The judge said she would reduce the fees 40 percent to account to inaccuracies due to poor timekeeping, and excessive hourly rates.

This decision yields a final fee award of $55,050. The CIA is responsible for paying one-third of the fees, and the Department of Defense must pay two-thirds.

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