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MCDONNELL v. UNITED STATES

November 9, 1994

ROBERT J. MCDONNELL, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants



The opinion of the court was delivered by: FREDA L. WOLFSON

 WOLFSON, UNITED STATES MAGISTRATE JUDGE

 Presently before the Court is the motion by Robert J. McDonnell, plaintiff, seeking attorney fees incurred as a result of his Freedom of Information Act (FOIA) litigation against defendants, United States of America, Department of the Navy and Department of Justice. The Court has received opposition from the defendants, as well as a reply by McDonnell. This Court enters judgment in this matter pursuant to 28 U.S.C. § 636, with the parties having consented to this Court's jurisdiction.

 Background

 With the close of this six-year litigation drawing near, plaintiff is now seeking an order awarding him attorney fees in the amount of $ 55,193.00. Certification of Plaintiff's Attorney. Without repeating all of the facts and arguments of the underlying litigation in full detail *fn1" , this Court must review plaintiff's claims, in particular his relative successes, in order to properly consider this application.

 In June 1985, McDonnell and Frederick N. Rasmussen, *fn2" venturing to co-author a scholarly book about the September 8, 1934 fire aboard the Morro Castle Luxury Liner, filed a FOIA request seeking various records relating to the occurrence. Specifically, McDonnell requested records pertaining to George White Rogers, George Alagna, John B. Duffy, the Morro Castle and the "Black Tom" explosion from the Office of Congressional and Public Affairs.

 On March 24, 1986, the FBI released only 666 of 1,029 pages relevant to McDonnell's request, claiming the unreleased documents were exempt from disclosure. The FBI subsequently provided some additional documents regarding the Morro Castle and George White Rogers. On July 14, 1986, the Office of Information and Privacy (OIP) denied McDonnell's appeal, but advised him that some additional records pertaining to deceased individuals would be released. The FBI then released some additional documents regarding Rogers, and McDonnell appealed its withholding of the remaining records pertaining to Rogers. The OIP also denied this appeal, and advised McDonnell that the FBI would not release information regarding Alagna without proof of his death.

 During its search, the FBI also located three Navy documents, and forwarded two of them to the Navy Military Personnel Command (NMPC) and the other to the Naval Investigative Service Command (NISCOM). NMPC released unredacted copies of the first two documents and NISCOM released a deleted copy of its document to McDonnell, claiming the deletion was necessary to avoid an unwarranted intrusion upon personal privacy. 5 U.S.C. § 552(b)(7)(C). McDonnell unsuccessfully appealed this decision to the Secretary of the Navy. In 1987, he made a new request to NISCOM for information pertaining to Rogers, Duffy, and Admiral W.F. Halsey. NISCOM located no relevant documents; furthermore, the request was not forwarded to other divisions of the Department of Navy because McDonnell had not requested this action.

 On August 22, 1988, McDonnell and Rasmussen filed a complaint in federal district court seeking disclosure of the information withheld by the Government, including specifically: the Navy records of George White Rogers; the Navy records regarding "the outcome of the [Oscar] Niger investigation; information pertaining to Niger; a threatening letter allegedly written by Rogers to Admiral Halsey; information withheld by the FBI relating to Alagna, Duffy, the Morro Castle, and the "Black Tom" file; and clearer copies of documents which McDonnell claimed were illegible.

 In January 1989, plaintiffs filed a motion for an in camera inspection of the documents sought in the complaint. *fn3" On March 13, 1989, the government filed its Vaughn index, which included declarations of FBI Special Agent ("SA") William Earl Whaley and SA Angus Llewellyn relating to the documents withheld by the FBI, the declaration of Lieutenant Commander Brian D. Robertson of the Judge Advocate General's Corps regarding the documents forwarded by the FBI to NISCOM, and two affidavits by Jacqueline D. Marini, Assistant Information and Privacy Coordinator, NISCOM, regarding the document forwarded by the FBI to NISCOM.

 On July 25, 1989, McDonnell filed an affidavit in response, and, on August 31, 1989, he moved for summary judgment and renewed his motion for an in camera review. On October 26, 1989, the Government filed a cross-motion for summary judgment, supplementing it with the Second Declaration of SA Llewellyn. This Court heard oral argument on July 16, 1990, and directed the government to submit an affidavit regarding the FBI's interviewing techniques, specifically including whether interviewees were expressly or impliedly assured confidentiality, along with both an ex parte affidavit and in camera inspection of the materials produced to the grand jury which investigated the Morro Castle incident.

 On June 7, 1991, this Court filed a Report and Recommendation ("Report") which concluded, inter alia:

 1. Certain requests for records pertaining to Alagna, Duffy, and the "Black Tom" explosion and documents relating to Niger were properly denied because plaintiffs failed to exhaust administrative remedies. Report, pp. 11-16.

 2. NISCOM conducted a proper search, and was not obligated to forward McDonnell's request to other departments within the Navy. Id. at 17-18.

 3. The withholding of five documents which related to FBI cryptographic systems was proper because they related to national security. Id. at 18-24. See 5 U.S.C. § 552(b)(1).

 4. The withholding of the grand jury records is required by Fed. R. Crim. P. 6(e). Report, at 24-27. See 5 U.S.C. § 552(b)(3).

 5. The withholding of Rogers' juvenile records is also authorized by federal law. Report, at 27-29. See 5 U.S.C. § 552(b)(3); 18 U.S.C. § 5038.

 6. The withholding of medical information located in a personnel record of an undisclosed individual was proper because the privacy interests implicated outweighed the public benefits of disclosure. Report, at 29-32. See 5 U.S.C. § 552(b)(6).

 7. The withholding of records compiled for law enforcement purposes, including the identities and information which would identify certain FBI agents and personnel, law enforcement officers, non-FBI federal government employees, individuals mentioned in FBI files, and individuals who are the subjects of other FBI investigations or third parties in whom the FBI had an interest, was proper because disclosure would constitute an unwarranted intrusion upon personal privacy. Report, at 33-37, 40-41. See 5 U.S.C. § 552(b)(7)(C).

 8. The withholding of records compiled for law enforcement purposes was improper as it related to the following information:

 
-- the identities of any deceased persons, Report, at 37-39
 
-- the identities of witnesses and other third parties whom the FBI interviewed in connection with its investigations, Id. at 39-40

 10. The withholding of records compiled for law enforcement purposes which would allegedly disclose techniques and procedures for law enforcement investigations or prosecutions was proper. Report, at 47-48. See 5 U.S.C. § 552(b)(7)(E).

 On September 11, 1991, the district court adopted the Report and Recommendation "in its entirety." On appeal, the Third Circuit affirmed most of the district court's order, specifically holding, inter alia: Rasmussen did not have standing, McDonnell v. United States, 4 F.3d 1227, 1236-39 (3d Cir. 1993); McDonnell's failure to exhaust administrative remedies precluded consideration of certain claims, id. at 1239-41; the government properly withheld the documents which pertained to national security, id. at 1242-46; the government properly withheld the records regarding the grand jury proceedings, id. at 1246-49; the government properly withheld the records compiled for law enforcement purposes and intruded upon personal privacy, id. at 1254-56; and the government properly withheld information regarding witnesses who had received express assurances of confidentiality. Id. at 1257-58. The court reversed the portion of the district court's order which permitted the government to withhold Rogers' juvenile records, id. at 1249-51, as well as the portion which authorized the release of the names and personal information of witnesses and third parties interviewed which could constitute an unwarranted invasion upon their privacy. Id. at 1256-57. The Third Circuit remanded the issue of the medical records in the undisclosed person's files for a determination of whether that person was alive, id. at 1251-54, and vacated and remanded the claims involving the implied assurances of confidentiality in light of the recent Supreme Court decision in United States Dept. of Justice v. Landano, 124 L. Ed. 2d 84, 113 S. Ct. 2014 (1993). McDonnell, 4 F.3d at 1258-60. Finally, the Third Circuit opined that McDonnell was entitled to receive "the best possible reproductions of the documents to which he is entitled"; if legible copies could not be made, then "arrangements could be made to have redacted transcripts prepared by a transcriber with appropriate security clearance." Id. at 1261-62 n.21.

 Discussion

 The Freedom of Information Act provides: "The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E). It is well established that a plaintiff can recover attorney fees only if 1) he is eligible, and 2) he is entitled to such an award. See e.g. Landano v. U.S. Dept. of Justice, Civ. No. 90-1953 (D.N.J. Sept. 22, 1994).

 In order to be considered eligible for attorney fees, a plaintiff must have substantially prevailed in his action. 5 U.S.C. § 552(a)(4)(E). A plaintiff has substantially prevailed if 1) his lawsuit was reasonably necessary for the records sought to be disclosed, and 2) the litigation substantially caused the release of these records. Chesapeake Bay Foundation, Inc. v. U.S. Dept. of Agriculture, 304 U.S. App. D.C. 167, 11 F.3d 211, 216 (D.C. Cir. 1993), reh'g denied; Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir. 1976).

 If the plaintiff has established his eligibility, the court then has discretion as to whether or not to award fees. Although not strictly limited, courts primarily consider four factors in making this determination: public benefit resulting from the disclosure, commercial benefit to plaintiff resulting from the disclosure, the nature of plaintiff's interest in the records disclosed, and whether the government had a reasonable basis in law for withholding the records. Chesapeake Bay ...


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