A recent BLT Blog story, “Appeals Court Sets Guidelines for Attorney Fees in FOIA Cases,” reports that for the first time since the District of Columbia adopted its Freedom of Information Act (FOIA) in 1976, the D.C. Court of Appeals has spelled out when prevailing parties in FOIA cases can recover attorney fees and how judges should weight those fee requests.  In an opinion (pdf), a three-judge panel explained that while the city’s FOIA law is different from the federal FOIA statute, local trial judges should use the four-factor test that federal judges rely on to decide whether to award attorney fees.

The ruling is a loss for the city’s police union, which appealed a D.C. Superior Court judge’s decision denying attorney fees after the union prevailed in a FOIA case against the city.  The appeals court found that Judge Anita Josey-Herring correctly used the four-factor test and upheld her finding that the union failed to satisfy enough of the criteria.  The court also rejected the union’s argument that prevailing parties should be automatically entitled to fees.

The four-factor test asks judges to consider any public benefit from the FOIA case, commercial benefit from the plaintiffs, the plaintiff’s interest in the case and the government agency’s reasonableness in withholding the information requested.  Under the four-factor test, Josey-Herring found that there wasn’t a strong public benefit in the union’s request and that the fee request was very much in the union’s own interest.  Writing for the appeals panel, Judge Catherine Easterly, wrote, “…we presume that the trial court found that the lack of public benefit simply outweighed the unreasonableness of the government’s behavior in this case.”