Opinion for the Court filed by Circuit Judge STARR.
STARR, Circuit Judge:
This Freedom of Information Act suit concerns a nine-year quest for information from the Department of Justice ("the Department" or "DOJ") and its various components with respect to the investigation of the assassination of Dr. Martin Luther King, Jr. In these cross-appeals, the parties challenge various orders of the District Court. Appellant and cross-appellee Harold Weisberg
I
Before embarking on a discussion of the issues presented by these appeals, we first chronicle the most significant events in the lengthy history of this litigation.
A
On April 15, 1975, Harold Weisberg filed an administrative request with the Attorney General under the Freedom of Information Act ("FOIA" or the "Act"), 5 U.S.C. § 552 (1982), for information concerning the assassination of Dr. Martin Luther King, Jr.
One month after filing suit, on December 23, 1975, Mr. Weisberg filed another administrative request under the Act. Far more expansive than his April 1975 request, this second request specified twenty-eight different categories of information concerning Dr. King's assassination. The categories of information included, to list only a few, all letters, documents, reports, memoranda, and physical evidence with respect to the investigation of the King assassination, reports concerning fingerprints, and communications relating to the investigation between state prosecutors and DOJ officials. JA 37-41.
The Department filed an answer, contending that the first complaint, based on the April 1975 request, was moot because DOJ had already disclosed information responsive to that request. JA 42-43. The Department further contended that the amended complaint was premature inasfar as it was based on the unexhausted requests for information in appellant's second request. Id. Despite these contentions, the District Court permitted the litigation to continue. Transcript of Hearing, May 5, 1976, JA 107. Between April and August 1976, appellant was provided with information responsive to his first request from the files of the Department's Civil Rights Division.
At this early stage of the litigation, the issues focused primarily on the first FOIA request (in April 1975) and on Mr. Weisberg's desire to have copies of certain photographs copyrighted by TIME, Inc., but located in the FBI files. The Department, however, refused by virtue of TIME's copyright
Thereafter, the litigation focused primarily upon the adequacy of the Department's searches of its files for information responsive to Mr. Weisberg's two requests. The Department completed the processing of much of the first request by October 1976, see R. 25, but by that time had only begun processing appellant's second request. Transcript of Hearing, Oct. 8, 1976, JA 244-45. The Department construed Mr. Weisberg's second request broadly, interpreting it to include not only the specific items requested, but also the entirety of the FBI's headquarters files concerning the investigation of the King assassination, the so-called "Murkin" files (an FBI abbreviation for the King murder case). See, e.g., R. 32; Transcript of Hearing, Oct. 8, 1976, JA 243-45. The FBI interpreted the request in this manner primarily because of the voluminous quantity of the FBI's Murkin files and the correspondingly large size of the request, the historical significance of the King assassination investigation, and the public's interest in the FBI's investigation. During late 1976 and through 1977, the FBI processed the great bulk of these files, which resulted in the disclosure of approximately 45,000 pages of documents.
Not content with the extent of DOJ's disclosures, however, Mr. Weisberg continued to maintain that the FBI had failed to conduct an adequate search. In particular, appellant wanted the FBI to search the files of certain FBI field offices, in addition to the files at FBI headquarters. In an attempt to resolve amicably the disagreements pertaining to the scope of the search, the Department and appellant entered into a stipulation on August 11, 1977, defining the Department's search obligations. JA 268. Approved by the District Court, the stipulation provided a timetable for completion of the Department's processing of Mr. Weisberg's two requests.
Despite receiving approximately 60,000 pages of documents, Mr. Weisberg continued to assert that the Department had not adequately searched its files. He also contended that the Department improperly withheld material in documents that had been processed. In particular, he contended that the various field office files had not been fully disclosed and should have been reprocessed; that he should be furnished with the indices to the FBI Memphis Field Office files, R. 101; and that various components of DOJ should have been searched. He further claimed that an inadequate search had been conducted with regard to the so-called "Long tickler" file, a temporary file of various Murkin documents maintained by FBI Special Agent Long, who was assigned to the assassination investigation. R. 135.
On February 26, 1980, the District Court ruled that the Department's search was adequate. JA 477. Despite this clear-cut ruling, Mr. Weisberg nonetheless sought further searches and reprocessing of documents already furnished to him. The litigation thereafter shifted to the issue of the Department's use of exemptions to excise certain material from disclosed documents. Acting on appellant's motion, the District Court ordered a Vaughn index of every two hundredth document. The court later ordered a supplemental Vaughn index when the first index produced a large number of pages containing no excisions, in order to evaluate the propriety of DOJ's claimed exemptions. Transcript of Hearing, Feb. 26, 1980, at 52-56; Transcript of Hearing, Aug. 15, 1980, at 6-8. In a memorandum decision issued December 1, 1981, the District Court conditionally granted the Department's motion for summary judgment, upholding all of the claimed exemptions. JA 572. On January 2, 1982, the District Court ruled that the Department had met all specified conditions. JA 604. The District Court later declined to reopen the litigation on the merits of the case. Order, June 22, 1982, JA 611.
In the midst of all these disputations over the completeness of FOIA disclosures, the Department during late 1977 and early 1978 considered entering into a consultancy arrangement with Mr. Weisberg. The goal of this contemplated arrangement was to clarify the exact nature of appellant's manifold objections to the disclosure process and the results thereof.
Appellant filed a motion for payment of the consultancy fee on May 29, 1979. R. 94. The District Court, after deferring judgment on the issue and at one point granting the motion,
C
Now the final issue: in June 1979, Mr. Weisberg moved for summary judgment on the issue whether he had substantially prevailed for purposes of obtaining attorneys' fees under 5 U.S.C. § 552(a)(4)(E). After deferring as premature any ruling on the motion on August 13, 1979, JA 440, the District Court ruled in 1981 that Mr. Weisberg had substantially prevailed. Memorandum Opinion, Dec. 1, 1981, JA 585. Appellant moved for $267,516 in attorneys' fees and costs. Affidavit of James H. Lesar, JA 636-69. The Department opposed the motion on several grounds, but the District Court awarded $93,926.25 in fees and $14,481.95 in costs. JA 722. The
These appeals followed.
II
A
On appeal, Mr. Weisberg argues that the District Court erred in granting summary judgment to the Department on the adequacy of its search and the propriety of its withholdings. First, he contends that the scope of the Department's search was unreasonably limited, that the FBI withheld many of the so-called "field office files" as previously processed, and that the Department failed adequately to search for certain specified documents. Appellant's Brief 33-37. Second, he argues that the Department improperly withheld and excised information from those documents which it did disclose and that the two Vaughn indices were inadequate. Id. at 37-39. Despite Mr. Weisberg's numerous complaints with respect to the Department's disclosures, we reject each of these arguments and affirm the District Court's grant of summary judgment.
1
As this court made clear in its recent decision in another of Mr. Weisberg's FOIA suits, the standard is well established for granting an agency summary judgment as to its claim of compliance with FOIA disclosure obligations. To meet its burden to show that no genuine issue of material fact exists, with the facts viewed in the light most favorable to the requester, the agency must demonstrate that it has conducted a "search reasonably calculated to uncover all relevant documents." Weisberg v. Department of Justice, 705 F.2d 1344, 1350-51 (D.C.Cir.1983). Further, the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. Id. at 1351 (citing Perry v. Block, 684 F.2d 121, 128 (D.C.Cir.1982) (per curiam)). The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case. Id. (citing McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C.Cir.1983) modified on petition for rehearing in other respects, 711 F.2d 1076, 1077 (D.C.Cir.1983)). In demonstrating the adequacy of the search, the agency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith. Id. (citing Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1979) (per curiam), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980)). With the guiding principle of reasonableness in mind, we turn to each of appellant's contentions.
The District Court issued its "Finding as to Scope of Search" on February 26, 1980, holding that the Department was entitled to summary judgment on that issue. JA 477. The District Court expressly found that a "proper and good faith search has been made for all items responsive to plaintiff's request in the FBI headquarters' Murkin files and in all files of the FBI field offices, with the exception of the Frederick residency." Id.
First, appellant generally argues that the search was unreasonably limited because the FBI and the Department attempted to restrict the search to the Murkin files. In support of this contention, Mr. Weisberg argues that the Department failed to meet its burden by refusing to search the "individual items of Weisberg's December 23, 1975 request" as well as two particular components of the Department, the Office of Legal Counsel (OLC) and the Community Relations Service (CRS).
We are fully persuaded, however, that the search efforts of the Department and the FBI were entirely reasonable and adequate. At the outset of this branch of our inquiry, it must again be borne in mind that Mr. Weisberg received approximately 60,000 documents. The Department submitted numerous, extremely detailed, nonconclusory affidavits in support of its motion for summary judgment on the scope issue. See, e.g., Affidavits filed in support of Defendant's Motion for Partial Summary Judgment, May 14, 1979, R. 128, R. 187; Affidavit of Douglas F. Mitchell, JA 403-08; Fourth Affidavit of Janet L. Blizard, JA 561-69; Affidavit of Salliann M. Dougherty, JA 565-69. Despite Mr. Weisberg's repeated attacks on the integrity of the Department's affidavits, they cannot seriously be challenged as having been made in bad faith. Moreover, our review of the voluminous record in this case demonstrates that the District Court repeatedly required the Department to undertake searches at appellant's request.
In the face of these detailed affidavits and the record in this case, Mr. Weisberg levels only speculative assertions that other documents exist or were not located in the numerous searches which were in fact conducted by the Department and the FBI. His general contention that the FBI tried to limit the search to its Washington, D.C. headquarters' Murkin files is, as the record clearly demonstrates, patently without foundation. As Mr. Weisberg himself points out as to the attorneys' fees issues, the FBI, pursuant to the parties' stipulation, searched and disclosed approximately 15,000 pages of documents from the Memphis and other FBI field offices. Many of these documents were not from the headquarters' Murkin files. Rather, the documents came from FBI field offices, files concerning "the Invaders," the "Memphis Sanitation Workers Strike," and James Earl Ray. Mitchell Affidavit, JA 403-04. Moreover, the Department searched the files of the Attorney General and the Deputy Attorney General pursuant to a District Court order, and did not locate any responsive materials in the course of that search. Order of Sept. 11, 1980, JA 523; Affidavit of Quinlan J. Shea, R. 1987. Nor is the Department's effort in this respect flawed simply because it did not search the "individual items" of the request. As this court has recognized repeatedly, "an agency is not required to reorganize [its] files in response to [a plaintiff's] request." Goland v. CIA, 607 F.2d 339, 353 (D.C.Cir.1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). The FBI's files on the King assassination investigation clearly were not organized along the lines of Mr. Weisberg's request; rather than treat the twenty-eight individual requests separately,
Appellant's contention that the files of two individual components of the Department, OLC and CRS, should have been searched fares no better. Mr. Weisberg has utterly failed to rebut the Department's showing of adequacy by coming forward with evidence to suggest that responsive documents might be found there. The only "evidence" he proffers in this respect is that a letter from a writer requesting an interview regarding the investigation was located in a file other than a Murkin file. As shown above, however, there can no longer be any dispute in this case that some materials sought by Mr. Weisberg were not located in the Murkin file. This example, however, in no way suggests that these particular components of DOJ contain responsive materials. The Department's detailed affidavits stating that it has no reason to believe materials will be found in those components withstand Mr. Weisberg's generalized attack. Therefore, in the absence of such evidence, we decline to require the Department to search OLC and CRS files.
We also reject the contention that the search was unreasonable because the FBI did not search its "divisional files."
Appellant's second major argument with respect to the adequacy of the search is that the District Court should have ordered reprocessing of the entirety of the FBI's field office files. He argues that evidence from another of Mr. Weisberg's FOIA suits, in which he requested information on the JFK assassination, shows that the FBI's method of processing field office files was inadequate and that duplicative documents with notations were not provided. Appellant's Brief 36-37. We note that this is not the first time appellant has attempted to utilize evidence developed in one of his FOIA actions in another action. See Weisberg IV, supra, 705 F.2d at 1361-62. Here, however, as in Weisberg IV, the argument fails. The fact that the FBI's Dallas Field Office, in processing files in response to appellant's request concerning the assassination of President Kennedy, erroneously failed to provide some 2,000 nonduplicative documents in no way casts doubt on the FBI's methods of searching the Murkin files of other FBI field offices. This feeble evidence drawn from other litigation scarcely creates a genuine issue of material fact when contrasted with the Department's specific affidavits on this issue.
Appellant next argues that reprocessing is required, inasmuch as he was not provided with duplicates of documents containing notations already furnished to him from the headquarters' Murkin files. The District Court rejected this contention, finding that this request would have violated the explicit terms of the August 1977 stipulation. That stipulation provided, as we have seen, that "duplicates of documents already processed at headquarters will not be processed and included if found in field offices as well as copies of documents with notations," JA 268 (emphasis added). As the Department notes, and the record bears out, all the field office documents have some notations on them, e.g., routing stamps. The stipulations, therefore, must be read with this fact fully in mind. The FBI reasonably provided only documents with substantive notations. The effect of requiring reprocessing of all field office files containing any notation would plainly nullify the stipulation's provisions. The District Court therefore properly credited the Department's affidavits on this point and refused to require reprocessing of the field office files on this ground.
Finally, Mr. Weisberg's concluding contention with respect to the scope and adequacy of the search is that the FBI wrongfully refused to search the separate individual files of the numerous persons listed in appellant's December 23, 1975 request. See supra note 5. Appellant's Brief 33-36.
We believe that the FBI and the Department reasonably interpreted the request to include information about these individuals as related to the Murkin files and not to individual files, if any exist. First, as shown above, the request itself was framed in this manner. Second, the stipulation is indicative of this understanding, in that absolutely no mention of searching individual files is made. Third, the parties conducted this litigation consistently with this understanding for almost five years before Mr. Weisberg's objections finally came to the fore in November 14, 1980, some nine months after the District Court entered its February 1980 finding as to the scope of the search. Moreover, no mention of this issue was made in the papers and oral argument on the summary judgment motion. The tardiness of Mr. Weisberg in raising this issue clearly prevented its adequate resolution by the District Court. Given the long standing interpretation of this request in this litigation, we are fortified in our view that the FBI's interpretation was a reasonable one.
In sum, we affirm the District Court's grant of summary judgment concerning the adequacy of the Department's search. We reject each of Mr. Weisberg's contentions that the search was unreasonably limited, that the field office files should have been reprocessed, and that the FBI wrongfully failed to search any individual files as listed in the December 23, 1975 request. The Department conducted a search reasonably calculated to respond to Mr. Weisberg's request, and he in turn has raised no genuine issue of material fact with respect to the adequacy of that search.
2
Appellant's second line of attack on the grant of summary judgment below is that the Department's claims of exemption were improper and that the District Court accordingly erred in upholding them. First, he argues that the sampling procedure utilized for the Vaughn index was defective because it did not include samples of "all of the kinds of exemption claims made." Appellant's Brief 37-38. Second, appellant argues that the District Court erred in upholding the Department's use of FOIA exemptions 7(C) and 7(D). We address each of these arguments in turn.
Again, we must bear in mind the circumstances of this case. In response to his FOIA requests, Mr. Weisberg has received almost 60,000 pages of documents. Given this magnitude of disclosure, the District Court clearly could not have undertaken a review of each of the documents from which the Department, pursuant to FOIA's
Appellant primarily complains that the sampling provided by the District Court's methodology did not provide examples of the Department's use of exemptions 3, 5, 6, and 7(F). Appellant's Brief 26, 38. However, we discern no error whatever in the District Court's decision to require sampling rather than examining each and every document on which challenged exemptions were claimed. The District Court ordered not one, but two Vaughn indices when the random sampling provided by the first index produced many documents with no excisions whatever. The second index in this case consisted of ninety-three documents totalling 400 pages. JA 581. The exemptions that Mr. Weisberg claims were not represented on the Vaughn indices are exemptions used in only two percent of the total documents disclosed. Thus, on its face, the procedure provided the District Court with an adequate sampling of the Department's use of exemptions. The sampling procedure is appropriately employed, where as here the number of documents is excessive and it would not realistically be possible to review each and every one. See Vaughn v. Rosen, 383 F.Supp. 1049, 1052 (D.D.C.1974), aff'd, 523 F.2d 1136 (1975); cf. Ash Grove Cement Co. v. FTC, 511 F.2d 815, 818 (D.C.Cir.1975) (sampling of documents for in camera inspection). There is no contention that the integrity of the Vaughn index is questionable, nor could there be in view of the fact that the sampling was random. Cf. Lame v. Department of Justice, 654 F.2d 917, 928 n. 11 (3d Cir.1981) (integrity of sample index questionable when government, rather than court, selects samples). In sum, we find no error in the District Court's use of the sampling procedure for the Vaughn index.
Appellant next contends, rather vaguely, that there were "many examples" of wrongful withholding.
Exemption 7(C) permits an agency to withhold "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C) (1982). At the outset, it is clear, as the District Court observed, that the records sought here were compiled for law enforcement investigatory purposes. The District Court concluded that the FBI properly withheld the "identities of persons investigated or interviewed, information about third persons appearing in the documents and the names of FBI Special Agents," relying primarily upon this Court's decision in Lesar v. Department of Justice, 636 F.2d 472, 486-88 (D.C.Cir.1980). See also Baez v. Department of Justice, 647 F.2d 1328, 1338-39 (D.C.Cir.1980). In Lesar, the court upheld the withholding of information almost identical to that withheld here. Specifically, this court concluded that, despite the fact that FBI agents are public officials, they have a "legitimate interest in preserving the secrecy of matters that conceivably could subject them to annoyance or harassment in either their official or private lives." 636 F.2d at 487.
The great public interest in the tragic assassination of Dr. King did not outweigh the privacy interests at stake in Lesar, and we discern no reason for reaching a different conclusion here. The same privacy interests are at stake here as there; and, the same risk of harassment and annoyance as in Lesar would inhere in any release of agents' identities in this case.
As noted above, Mr. Weisberg claims that he knows the identities of two persons who gave information to the FBI, and that the names of those persons were also disclosed to the House Select Committee on Investigations. That is neither here nor there, however. The fact that Mr. Weisberg has apparently been able to piece together the manner in which the identities of these alleged informants fit in with the FBI's Murkin investigation in no way undermines the privacy interests of these individuals in avoiding harassment and annoyance that could result should the FBI confirm to Mr. Weisberg the presence of their names in the King documents. Release of such information to a member of the public interested in scholarly analysis and publication has the potential to result in greater dissemination than would release to an investigative committee of Congress. We therefore uphold the District Court's grant of summary judgment for the Department on the use of Exemption 7(C).
Exemption 7(D) protects from disclosure
5 U.S.C. § 552(b)(7)(D) (1982). Under this exemption, the FBI withheld information supplied by confidential sources and information
In sum, we uphold the District Court's grant of summary judgment on the various exemption claims. Appellant has pointed to nothing whatever that calls into question the propriety of the Department's use of those exemptions.
B
We turn now to the second of Mr. Weisberg's three major contentions on appeal. Appellant claims that he and the Department entered into a consultancy agreement for the purpose of his specifying with greater precision the deletions with which he took issue, in order to aid the Department in the resolution of the FOIA disclosure issues. Specifically, he claims that the Department, through Ms. Lynne Zusman, a DOJ attorney, offered him $75 per hour for this work and that he accepted the offer. Mr. Weisberg also asserts that he in fact completed the contemplated task, and that he submitted reports to the Department from which the Department benefited. Mr. Weisberg submitted a claim for payment of approximately $16,000, including costs, and sought an order from the District Court compelling the Department to pay that fee. The Department objected, contending that no contract had ever been entered into and that such material terms as the rate of compensation, the duration, and the precise nature of the work product were never agreed upon.
After initially granting appellant's motion,
We agree with the District Court that no contract, either express or implied in fact, was ever entered into by the parties here. It is, of course, elementary that in order to create an enforceable contract, the parties must manifest their mutual assent. See Restatement (Second) of Contracts § 3 (1977). The facts of this case clearly indicate that no contract was formed because the terms of the contract were not "reasonably certain." Id. § 33. In this case, no written contract was ever executed. But what is more, the District Court specifically found, after carefully examining the evidence, that the parties never agreed upon the duration of the consultancy, the court thus quite reasonably concluded that an agreement on that term was essential "because the total cost would depend primarily upon it." JA 735. Mr. Weisberg does not contest the fact that the parties did not agree on the duration of the alleged agreement. Rather, he argues that the duration, and thus the total cost of the contract, was not an essential term, and that the parties did not agree on that term because they could not predict the length of time it would take Mr. Weisberg to perform the contemplated services. Appellant's Brief 40.
We conclude that the District Court's finding as to the materiality of this term was entirely correct. The course of negotiations between appellant and the Department, which undisputably focused upon the amount of compensation to be paid, reveals the materiality of this term. It strains credulity to believe that the Department could have agreed to appellant's spending an unlimited amount of time on the project, especially in view of the nature of the elaborately regulated government contracting process. We therefore agree with the District Court that, under settled principles of the law of contract, the absence of agreement by the parties on a material term prevented the formation of a legally enforceable contract. 1 Corbin on Contracts, § 95, at 394 (1963 & Supp.1984); Restatement (Second) of Contracts, § 33 (1981) ("the fact that one or more terms ... are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance").
Appellant next argues that, notwithstanding the absence of a contract, he is entitled to an award based on principles of quasi-contract or contract implied-in-law. See 1 Corbin on Contracts, § 95,
Similar reasons compel the identical conclusion with respect to appellant's theories of promissory and equitable estoppel. First, as we have only recently observed, "there has been much controversy concerning when an estoppel will run against the government." National Juvenile Law Center v. Regnery, 738 F.2d 455 at 459 (D.C.Cir.1984) (citing Heckler v. Community Health Services of Crawford County, Inc., ___ U.S. ___, 104 S.Ct. 2218, 2223-24, 81 L.Ed.2d 42 (1984)). Assuming arguendo that promissory estoppel or equitable estoppel is available against the Government, it is nonetheless clear that these doctrines require the element of reasonable reliance. See Restatement (Second) of Contracts, § 90 (1981) ("A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if the injustice can be avoided only by enforcement of promise."); Heckler, supra, 104 S.Ct. at 2223 ("the party claiming estoppel must have relied on its adversary's conduct `in such a manner as to change his position for the worse' and that reliance must have been reasonable ....") (citations omitted).
The District Court found that "Mr. Weisberg did not act reasonably in proceeding with work on the consultancy agreement." JA 878. The court based this conclusion on (1) the history of the negotiations, (2) the correspondence between the parties on the consultancy, and (3) on the fact that Mr. Weisberg did most of the work on the consultancy before March 1978, the time when he contends the offer of $75 per hour was made. Id. at 878-79. As if more were needed, the District Court found that the Department did not obtain any benefit from the two narrative reports. Id. at 879.
The District Court's findings in this regard do not even remotely approach the domain of "clearly erroneous." First, it is undisputed that Mr. Weisberg commenced his work on the reports long before the March 15, 1978 conversation between Ms. Zusman and Mr. Lesar. Second, the entire course of dealings between the parties — in particular, the disputes concerning the amount to be paid and the specific form of the work product to be produced — evidence sufficient uncertainty that appellant was on notice that further negotiations were necessary. Thus, he could not have reasonably relied on any promise or representation. Most important, as the District Court found, the Department in no way benefited from the Weisberg reports; DOJ did not receive the work product it had sought in the first instance and thus did not benefit from that which Mr. Weisberg did produce. We therefore decline, as did the District Court, to require payment of a consultancy fee on the basis of promissory or equitable estoppel.
C
Finally, we turn to the last of the three principal issues on this appeal, the District Court's award of $93,926.25 in attorneys'
The Department challenges the attorneys' fees and costs award, arguing that appellant did not substantially prevail, and that even if it did, he is not entitled to an award under the four criteria enunciated in Fenster v. Brown, 617 F.2d 740, 742 (D.C. Cir.1979). See discussion infra, at 45. The Department also argues that an increase in the lodestar rate was unjustified and that appellant is unentitled to costs. Appellant argues, in contrast, that the District Court's decision should be upheld, except insofar as (1) he was awarded only $75 per hour, (2) time spent on the fee application was excluded, and (3) the lodestar rate was not adjusted to take account of delay in receipt of fees.
1
Section 552(a)(4)(E) permits a District Court to "assess against the United States reasonable attorneys' 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) (1982). Whether an award of attorneys' fees is proper depends upon a two-step inquiry. First, the complainant must show that he or she is "eligible" for an award by demonstrating that he or she substantially prevailed. But eligibility alone is not enough. Second, and equally important, the complainant must show that he or she is "entitled" to an award. Church of Scientology of California v. Harris, 653 F.2d 584, 587 (D.C.Cir.1981). See discussion infra, at 1498. Once it is determined that a complainant is entitled to attorneys' fees, the court must then calculate the award by multiplying the hourly rate and the number of hours expended on the litigation — the so-called "lodestar award." National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1323 (D.C.Cir.1982). Thereafter, the court may consider whether an adjustment in the lodestar rate is appropriate. Id. at 1328-29. Finally, the court may consider awarding "reasonable litigation costs." With this framework in mind, we turn to each of the elements of the District Court's award.
2
The District Court concluded that appellant had substantially prevailed in this FOIA litigation, stating simply that "[d]efendant has released over 50,000 pages to plaintiff in this lawsuit; there is no question that plaintiff has substantially prevailed." Memorandum Opinion, Dec. 1, 1981, JA 573-74. When DOJ requested reconsideration of this issue, the District Court reiterated this conclusion, stating that "[t]he record in this action reflects that defendant stonewalled plaintiff's request for more than a year after plaintiff filed this complaint. There is no question that the prosecution of this action was necessary and that the action had a substantial causative effect on the delivery of the information." Memorandum Order, Jan. 5, 1982, JA 605.
The Department challenges this determination, arguing, first, that the great majority of the approximately 60,000 pages released to Mr. Weisberg in response to his two administrative requests were released as a result of the administrative processing of his voluminous second request of December 23, 1975, which appellant concededly
To evaluate the merits of this argument, we begin by noting the task before the District Court in determining whether a FOIA complainant has substantially prevailed. It is well established in this circuit that this inquiry is largely a question of causation. "[T]he party seeking such fees in the absence of a court order must show that the prosecution of the action could reasonably be regarded as necessary to obtain the information ... and that a causal nexus exists between that action and the agency's surrender of that information." Cox v. Department of Justice, 601 F.2d 1, 6 (D.C.Cir.1979); Church of Scientology of California v. Harris, supra, 653 F.2d at 587-88. Although an agency cannot prevent an award of attorneys' fees simply by releasing the requested information without requiring the complainant to obtain a court order, the mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation. See Crooker v. Department of the Treasury, 663 F.2d 140, 141 (D.C.Cir.1980) (per curiam).
The question whether an FOIA litigant has substantially prevailed is, of course, a question of fact entrusted to the District Court and the appellate court is to review that decision under a clearly-erroneous standard. See Cox v. Department of Justice, supra, 601 F.2d at 6; Crooker v. Department of the Treasury, supra, 663 F.2d at 142; Sweatt v. United States Navy, 683 F.2d 420, 425 (D.C.Cir.1982). Nevertheless, it is equally well established that findings of fact derived from the application of an improper legal standard to the facts may be deemed by an appellate court to be clearly erroneous. See United States v. Singer Mfg. Co., 374 U.S. 174, 194 n. 9, 83 S.Ct. 1773, 1784 n. 9, 10 L.Ed.2d 823 (1963); FTC v. Texaco, Inc., 555 F.2d 862, 876 n. 29 (D.C.Cir.), cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977). See also 9 C. Wright & A. Miller, Federal Practice & Procedure § 2585, at 733-34 (1971).
Applying these standards to the case at hand, it is evident that the District Court's determination that appellant substantially prevailed must be vacated. The District Court, as noted above, provided only the barest outline of the reasoning underlying its conclusion that Mr. Weisberg substantially prevailed. The District Court merely concluded that because Mr. Weisberg had obtained over 50,000 pages, he had substantially prevailed. This conclusion evidences no consideration whatever of several factors that this court expressly recognized in Cox v. Department of Justice, 601 F.2d 1 (D.C.Cir.1979). In Cox, we explained that the causation inquiry must take into account "whether the agency upon actual and reasonable notice of the request, made a good faith effort to search out material and to pass on whether it should be disclosed." Id. at 6. We further noted the relevance of such factors as the number of requests pending before the agency and the time-consuming nature of the search and decisionmaking process. Id. (citing Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C.Cir.1976)).
The District Court utterly failed, in evaluating the record in this case, to take account of these factors in concluding that appellant had substantially prevailed. Even a cursory review of the undisputed facts in the record indicates the strong
On remand, the District Court should consider the specific argument advanced by the Department that the bulk of documents that Mr. Weisberg did receive as a result of the litigation — the Long tickler, abstracts, indices, and index cards — were either duplicative or unresponsive to his requests. Some documents were released, DOJ argues, just to put Mr. Weisberg's incessant demands behind it once and all. Appellant, in contrast, relies heavily on these successes in urging that the District Court's causation determination be upheld.
Accordingly, the District Court should consider whether these disclosures justify a finding that appellant substantially prevailed as to his overall request. See Goland v. CIA, supra, 607 F.2d at 356 n. 103 (although FOIA plaintiffs need not obtain a judgment in court to be eligible for an award of fees, the plaintiffs must "substantially prevail") (emphasis in original). In particular, it appears that appellant obtained only thirty-four index cards from the Memphis Field Office. JA 440. Appellant also received abstract cards to the Murkin files pursuant to an oral court order. JA 470. Nevertheless, after the disclosure had already been made, the District Court
We therefore remand the issue of the attorney's fees awards by the District Court for reconsideration of whether Mr. Weisberg substantially prevailed.
3
Even if a court concludes that a plaintiff in an FOIA suit has substantially prevailed, a further inquiry must be made into the entitlements of the plaintiff to a fees award. This inquiry entails a balancing of four factors: (1) the benefit of the release to the public; (2) the commercial benefit of the release to the plaintiff; (3) the nature of the plaintiff's interest; and (4) the reasonableness of the agency's withholding. Church of Scientology, supra, 653 F.2d at 590 (citing Fenster v. Brown, 617 F.2d 740 (D.C.Cir.1979)). The District Court concluded that all four criteria were met in the instant case, ruling that Mr. Weisberg's efforts had resulted in an increase in the amount of information available to the public, that Mr. Weisberg had derived no commercial benefit, and that his interest in the documents was loftily scholarly and journalistic. Finally, the court concluded that the Department lacked a reasonable basis for withholding the documents ordered to be disclosed. JA 720-25.
Inasmuch as we vacate and remand for reconsideration the District Court's conclusion that appellant substantially prevailed, we also remand to the District Court for consideration of the balance of factors under the entitlement analysis should the District Court conclude that appellant did indeed substantially prevail in this litigation. In particular, the District Court should reconsider whether the Department had a reasonable basis in law for its withholding. In analyzing this factor, we have noted, and the District Court has recognized, that there must be a showing that the "government had a reasonable basis in law for concluding that the information in issue was exempt and that it had not been recalcitrant or otherwise engaged in obdurate behavior." Cuneo v. Rumsfeld, 553 F.2d 1360, 1366 (D.C.Cir.1979). Here, the District Court focused primarily on the adequacy of the Department's search efforts, rather than upon the information it withheld.
On remand, the District Court should first bear in mind that all of the Department's claimed exemptions were properly upheld. Second, the District Court should give adequate weight to the unique circumstances of this case — appellant's failure to exhaust his administrative remedies, the voluminous nature of his request, his frequent reformulations of his request, and the length of time obviously required to process such a large request. Third, as recounted above, many of the delays in this suit were unquestionably the appellant's own doing. He filed numerous, repetitive motions and sought unwarranted reprocessing of documents and repeated searches, most of which were to no avail. Plainly, simple justice requires that the Government not be penalized for delays it did not cause. Finally, we note that the District Court improperly considered the "repudiation of the consultancy agreement" in evaluating the Department's reasonable basis for withholding. Thus, on remand, should the District Court conclude that appellant is eligible for an award of attorneys' fees, it should also reconsider
4
In determining a fee award (after a court has concluded that an FOIA complainant is both eligible and entitled to an award), the District Court must next determine the hourly rate and the number of hours or "lodestar award." National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1323 (D.C.Cir.1982) (hereafter "NACV"). On remand, should the District Court determine that an award of fees is proper, it should reconsider the calculation of the lodestar fee in this case, taking into account the following factors. Under NACV, a prevailing FOIA plaintiff is not entitled to an attorneys' fees award for "nonproductive time or for time expended on issues on which plaintiff ultimately did not prevail." Id. at 1327. The District Court properly excluded the time spent on the unsuccessful consultancy fee issue and the excessive time spent on the fee application itself. The District Court, however, excluded only seven hours from the fees attributable to the merits of the case. On appeal, appellant candidly concedes that additional hours should have been deducted from his fee application. Appellant's Brief 57-58. Moreover, it is abundantly clear from our review of the record that appellant filed numerous nonproductive and repetitive motions on issues on which he ultimately did not prevail.
5
The District Court also awarded a fifty percent "risk premium" on top of the lodestar rate, reasoning that this litigation was "unnecessarily prolonged" and that the outcome was "highly uncertain." JA 729-30. The Department argues that the award was completely unjustified, while appellant contends that it was not enough. On remand, should the court conclude that an award of fees is proper, it should also reconsider the upward adjustment awarded here in light of the Supreme Court's intervening decision in Blum v. Stenson, ___ U.S. ___, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).
In Blum, the Court held that although an upward adjustment of the lodestar fee in a case under 42 U.S.C. § 1988 is permissible "in some cases of exceptional success," the plaintiff had made no such showing in that case. Id. 104 S.Ct. at 1549. The Court in reaching that conclusion analyzed the novelty and complexity of the issues, the quality of the representation, and the riskiness of the litigation. The Court found that despite the high quality of the representation there, and the fact that the litigation benefited a large class of persons, there was no support for the conclusion that the litigation was risky or involved novel theories. Finally, the Court indicated that such factors as the quality of representation, the results of the litigation, and the riskiness of the litigation will "ordinarily be subsumed within other factors used to calculate a reasonable fee." Id. Thus, the clear teaching of Blum is that courts should be cautious in adjusting the lodestar rate to avoid duplication of fee awards that have already been accounted for in the basic fee calculation.
In sum, the District Court on remand should reconsider the upward adjustment of the lodestar in light of this court's decisions in NACV and Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc) and the Supreme Court's decision in Blum.
IV
For the foregoing reasons, we affirm the District Court's grant of summary judgment to the Department on the adequacy of the search, the propriety of its use of the exemptions, and the absence of a consultancy fee arrangement. We vacate and remand for reconsideration of the award of attorneys' fees, with specific directions that the court consider whether appellant substantially prevailed and whether he is entitled to an award of fees. Should the court conclude that an award is appropriate, it should nonetheless exclude all nonproductive time and reconsider under Blum the appropriateness of an upward adjustment of the lodestar fee, as well as costs.
It is so ordered.
FootNotes
Id. at 1347 n. 1. In Weisberg v. Department of Justice, Mr. Weisberg filed suit on an FOIA request for information concerning the assassination of President Kennedy that he had submitted on the first day after the Act's amendments went into effect.
In addition to these documents, Mr. Weisberg also received between 15,000-20,000 field office files pursuant to the stipulation. Appellant's Reply Br. 13. In addition, he received indices to the Memphis Field Office files, pursuant to the District Court's order of August 15, 1979. R. 124. He further received 6,500 of the FBI's abstract cards, which are similar to the indices to the field office files. JA 574.
Finally, as we noted previously, appellant also had previously received documents in response to his April 15, 1975 request. See supra text accompanying note 6 & note 6.
First, Mr. Weisberg appears to argue that the Department improperly excised, pursuant to Exemption 7(E), which protects from disclosure law enforcement investigatory techniques and procedures, information regarding "Document 91." He argues that the law enforcement techniques described in that document are already well-known. Mr. Weisberg asserts that such techniques included wiretapping, bugging, and mail interception. As the Wood Affidavit explains, however, the technique used during the interview that is the subject of Document 91 is still in use today. To release the particular technique, in the context of that particular investigation, would obviously undermine its use in other similar circumstances. We do not think that the exemption for law enforcement techniques can be read so narrowly.
Second, appellant apparently contends that the Department erred in dropping a number of exemption claims. Appellant's Brief 26. We discern absolutely no error on the part of the Department in dropping claims under exemption (b)(1), when declassification made the documents disclosable. See MacDonald Affidavit, JA 525; Second MacDonald Affidavit, JA 556. Nor do we detect any error in DOJ's dropping exemptions under 7(A), since those claims were dropped when the proceeding at issue was no longer pending.
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