Attorney Fees in FOIA & PA

The Freedom of Information Act and the Privacy Act are two of nearly 150 federal statutes that allow for attorney fees to be paid for the Government.  The FOIA and PA allow for an attorney that represents a requester who later sues in Federal Court to recover reasonable attorney fees and costs if they “sustainably prevail" (once the case is filed, the “Complaint", also known as the requester, is now called a “litigant” or a “Plaintiff”).

A Plaintiff “sustainably prevails” when the Government changes their position in litigation.  That could be producing records when they have missed the deadline to do so, lifted redactions, conducted a new search, granted expedited processing, waived fees, deemed a request to not be overly broad, and other somewhat less common issues in litigation. 

Fees cannot be collected for the initial request, an administrative appeal or for reviewing records.  However, all other attorney actions, such as writing the Complaint, challenging redactions, writing memos to the Government, legal analysis, and other important steps in a case can be compensated for.  Some Government agencies have incurred more than $500,000 in attorney fees in complicated FOIA litigations.

Costs can also be compensated by the Government- generally, filing fees and other related costs such as official mail, personal service and so on.

Rights to Records keeps detailed logs of time and scope of work to preserve the right to bill the Government for attorney's fees and has experience in the regulations and case law supporting fees.

So, what does that mean to a FOIA or PA requester? 

Rights to Records charges for a request and administrative appeal based on the amount of time it takes to draft and submit this work.  However, as the Government often pays for the attorney fees in FOIA and PA cases, Rights to Records only charges the filing cost and a minor fee for the Complaint and subsequent representation that is refundable. The filing cost and fee for representation are returned if and when the Government pays attorneys fees.   Unlike, say, a personal injury lawyer who takes a percentage of the damages awarded to a Plaintiff, after attorney fees are awarded in one of our cases the cost and fee for representation are returned.  Other than the minor upfront, refundable cost, there is no downside for litigation under the FOIA or PA with Rights to Records.