with Landano, establishes that there is no presumption for withholding witness statements taken during an FBI investigation. This litigation also establishes that federal law does not authorize the withholding of juvenile records requested under FOIA. Finally, it will put the government on notice that FOIA requires that efforts be made to ensure that the documents produced must be legible, even if this requires additional expense on the part of the plaintiff.
In summary, the public benefit from the disclosure of historically significant documents and from the setting of precedent for future FOIA cases weighs significantly in favor of McDonnell. Even if the Court were to accept the Government's contention that McDonnell's interest in the information were primarily personal, this fact would not bar recovery of attorney's fees; any alternative would severely undermine FOIA, since it would put plaintiffs in the untenable position of needing to establish that they did not have a significant personal interest in documents which they may have already litigated for several years to obtain. See Cazalas v. United States Dept. of Justice, 709 F.2d 1051, 1053 (5th Cir. 1993) ("an acknowledgment of appellant's strong personal interest in securing certain letters and notes is not necessarily inconsistent with an equally strong public interest in also receiving these items.")
Second, both parties acknowledge that plaintiff may potentially receive some commercial benefit for this disclosure, since the material will be incorporated within a book which he intends to sell. It must be noted, however, that "[a] genuine scholarly interest -- no matter how specialized -- clearly weighs in favor of a successful plaintiff's recovery of fees in a FOIA action." Long v. IRS, 932 F.2d 1309, 1316 (9th Cir. 1991). This Court concludes that plaintiff's ultimate objective is to "write a well-documented authoritative book about the famous Morro Castle ship fire," McDonnell affidavit, P 1, at 1, and the prospect of substantial commercial gain, if even feasible, is secondary.
Third, for the reasons noted above, this Court finds that McDonnell's scholarly interest in the subject matter of the disclosure also weighs in favor of recovery of attorney fees.
Finally, it is necessary to assess whether the government had a reasonable basis in law for withholding the records in question. Regarding the most significant disclosure of documents -- those previously withheld pursuant to Exemption b(7)(D) -- this Court concludes that while the Government's position may have initially been reasonable, its refusal to disclose these documents, after the Landano decisions, was not reasonably supported by law.
Even if the Government's decision to withhold these documents had merit at the time of the summary judgment motions, the Government was well aware that the Third Circuit subsequently rejected this exact position in Landano. Notwithstanding the decision of this Court that Exemption b(7)(D) did not protect several of the documents relating to witness statements, along with the Third Circuit's similar holding in Landano, the Government still refused to disclose these documents. Moreover, even after the Supreme Court in Landano held that no presumption of nondisclosure existed for such documents, the Government still refused to disclose the documents to McDonnell. It was only after the Third Circuit decision in McDonnell acknowledged the Supreme Court decision in Landano that the Government finally disclosed the documents in question.
In sum, even if the Government was reasonable in withholding information, the public benefit in disclosure and plaintiff's lack of purely private interests in disclosure, mandates an award of attorney fees which is tailored to the success actually achieved.
3. What is a reasonable award of attorney fees?
In the seminal case of Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), the United States Supreme Court established the standard for determining the reasonableness of attorney fees for a prevailing party. A court should first determine "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate," commonly known as the lodestar. Id. at 433. This determination, however, does not "end the inquiry"; a court must then consider various factors which could adjust the fee award upward or downward. Id. at 434. Hensley noted that "the most critical factor is the degree of success obtained" by the prevailing party. Id. at 436; Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 918 (3d Cir. 1985). This consideration is "particularly crucial where a plaintiff is deemed 'prevailing' even though he succeeded on only some of his claims for relief." Hensley, 461 U.S. at 434; Institutionalized Juveniles, 758 F.2d at 918.
Specifically, the court should assess whether "plaintiff achieve[d] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award." Hensley, 461 U.S. at 434. Hensley specifically noted that if "a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount." Id. at 436; Mims v. Shapp, 744 F.2d 946, 954 (3d Cir. 1984); Student Public Interest Research Group v. AT & T Bell Laboratories, 842 F.2d 1436, 1455 (3d Cir. 1988). Accordingly, a court must reduce the fee award if "it concludes the benefits of the litigation were not substantial enough to merit the full amount of the lodestar." Poston v. Fox, 577 F. Supp. 915, 921 (D.N.J. 1984).
In considering the degree of success achieved by the prevailing party, the court does not have the benefit of a "precise rule or formula." Hensley, 461 U.S. at 436; Student Public Interest Research Group, 842 F.2d at 1455 ("the district court must exercise its discretion in reducing the fee downward"). Instead, the court "may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success." Hensley, 461 U.S. at 436-37. The Third Circuit has explained:
The second method involves a more general reduction of the lodestar, i.e., of the net lodestar amount, taking into account any reduction in the initial lodestar for litigating wholly unsuccessful claims, so that the award provides 'only that amount of fees that is reasonable in relation to the results obtained.'