CHURCH OF SCIENTOLOGY OF CALIFORNIA, Appellant,
v.
Patricia R. HARRIS, et al.
No. 80-1189.
United States Court of Appeals,
District of Columbia Circuit.
Argued Dec. 5, 1980.
Decided April 17, 1981.
Religious organization appealed from an order of the United States District
Court for the District of Columbia, June R. Green, J., which denied its request
for an award of attorney fees and litigation costs under the Freedom of
Information Act. The Court of Appeals, MacKinnon, Circuit Judge, held that the
religious organization's institution and prosecution of suit against the
Department of Health, Education, and Welfare under the Freedom of Information
Act was necessary and causally linked to the Department's release of 150
documents and, therefore, the religious organization had substantially
prevailed in the suit and was eligible to apply for an award of attorney fees
and litigation costs.
Reversed and remanded.
[1] RECORDS
Motion for award of attorney fees and litigation costs under statute providing
for award of such fees and costs to a plaintiff who has substantially prevailed
in an action to compel disclosure of information under the Freedom of
Information Act requires determination of two questions: (1) whether plaintiff
is "eligible" for such an award, and if so, (2) whether plaintiff is "entitled"
to such an award. 5 U.S.C.A. s 552(a)(4)(E).
[2] RECORDS
In the absence of a court order compelling disclosure of information under the
Freedom of Information Act, plaintiff seeking award of attorney fees and
litigation costs must show that prosecution of the action to compel disclosure
may be reasonably regarded as having been necessary to obtain the information
and that a causal nexus exists between the action and the agency's surrender of
the information. 5 U.S.C.A. s 552(a)(4)(E).
[3] RECORDS
Religious organization's institution and prosecution of suit against the
Department of Health, Education, and Welfare under the Freedom of Information
Act was necessary and causally linked to the Department's release of 150
documents and, therefore, the religious organization had substantially
prevailed in the suit and was eligible to apply for an award of attorney fees
and litigation costs. 5 U.S.C.A. s 552(a)(4)(E).
[4] RECORDS
Decision whether to award attorney fees and litigation costs to an eligible
party under the Freedom of Information Act rests in the sound discretion of the
district court. 5 U.S.C.A. s 552(a)(4)(E).
*584 **329 Appeal from the United States District Court for the District
of Columbia (D.C. Civil Action No. 76-1005).
Robert A. Seefried, Washington, D. C., with whom Earl C. Dudley, Jr.,
Washington, D. C., was on the brief, for appellant.
Keith A. O'Donnell, Asst. U. S. Atty., Washington, D. C., with whom Charles F.
C. Ruff, U. S. Atty., John A. Terry and John R. Fisher, Asst. U. S. Attys.,
Washington, D. C., were on the brief for appellees.
Before ROBINSON, MacKINNON and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge MacKINNON.
MacKINNON, Circuit Judge:
The Church of Scientology of California ("Scientology") appeals from an
opinion and order of the district court which denied its request for an award
of attorney's fees and litigation costs under section 552(a)(4)(E) of the
Freedom of Information Act ("FOIA"), *585 **330 5 U.S.C. s
552(a)(4)(E). The district court concluded that Scientology was not eligible
for such an award because it had not "substantially prevailed" within the
meaning of that section. We find that Scientology did substantially prevail
and direct the district court on remand to determine whether Scientology is
entitled to the fees and costs it seeks.
I.
By letters dated December 3 and December 19, 1974, Scientology made a formal
request under FOIA for all records in the possession of the Department of
Health, Education, and Welfare ("HEW") relating to the Church of Scientology or
its founder, L. Ron Hubbard. HEW responded on December 30, 1974 that "(n)o
materials pertinent to your request could be located in the Department's
Central Files Section." Scientology subsequently submitted a supplemental
request on November 5, 1975, which provided additional names under which
relevant files might be located, and which noted that "(t)here exists within
the organizational structure of DHEW several major offices and components
thereof, apparently now encompassed by the records examination undertaken by
your Department in compliance with my earlier request(s)." HEW replied on
December 2, 1975 that "(c)opies of your request were circulated to components
of the Department except for the Food and Drug Administration and the Alcohol,
Drug Abuse, and Mental Health Administration as requested in your letter." HEW
stated that three card references to Scientology had been found in the files of
the Office of Investigations and Security, but asserted that these references
were exempt from disclosure. HEW also explicitly declared that "(n)o other
component of the Department was able to locate any records pertaining to the
Church of Scientology or any of the organizations listed in your request."
Scientology filed an administrative appeal. In its final agency action, by a
letter dated February 17, 1976, HEW reversed in part the initial denial of the
three card references, and disclosed portions thereof. HEW also explained that
these cards referred to documents which originated in other agencies the FBI,
the Civil Service Commission, and the FDA and stated that the request for these
documents had been transmitted to the originating agencies.[FN1]
FN1. On August 11, 1976, HEW released portions of the FDA and Civil
Service Commission documents. HEW also advised Scientology that the Office
of the Assistant Secretary of Health ("OASH") had documents relating to
Scientology's separate FOIA request to the FDA. Some of these documents
were claimed to be exempt from disclosure, Joint Appendix ("App.") at 83-
86. HEW later informed Scientology that the OASH files contained only one
document, which concerned Scientology's FOIA request to the Public Health
Service, and not the FDA. This document was also claimed to be exempt from
disclosure. App. at 88-89. HEW apparently released this document,
however, at the Sisk deposition. See Brief for Appellants at 10 n.3, 12
n.4.
Dissatisfied with this result, Scientology filed a complaint under FOIA in the
district court on June 9, 1976 seeking de novo review of HEW's actions. On
August 4, 1976, Scientology served HEW with its first set of interrogatories.
In its answers to interrogatories, HEW revealed for the first time that an
unspecified number of additional documents encompassed by Scientology's request
existed in the files of HEW's Office of General Counsel. These documents were
said to concern "litigation and other relationships between HEW and the Church
of Scientology or its affiliates", and to be exempt from disclosure under 5
U.S.C. s 552(b)(5).[FN2] The only explanation given for withholding the
documents was that
FN2. HEW also claimed that the Office of General Counsel's documents were
exempt under 5 U.S.C. s 552(b)(5) in its response to Plaintiff's
Supplementary Set of Interrogatories. App. at 89.
Ms. Sisk (an attorney in the OGC) knew that all records in the division's
files were either documents of which Joel Kreiner (a Scientology attorney) had
copies ... documents subject to the attorney-client privilege and exempt from
disclosure under the Freedom of Information Act ... *586 **331 or
duplicates of documents from the files of the Food and Drug Administration.
In an effort to obtain further information, Scientology noticed and took the
deposition of Ms. Joanne Sisk, who was the individual identified in HEW's
answers to interrogatories as having searched the Office of General Counsel's
files in response to Scientology's FOIA request. At the deposition, Ms. Sisk
confessed that she had not conducted an actual search of the Office of General
Counsel's files until around the time that her deposition had been noticed, and
that HEW's administrative response to Scientology's FOIA request and HEW's
answers to interrogatories had not been based upon an actual search of the
files but upon an assumption as to their contents.[FN3] An internal HEW
memorandum also disclosed that Ms. Sisk had been aware that the Office of
General Counsel's files contained documents responsive to Scientology's FOIA
requests at the time the requests were being processed administratively.[FN4]
FN3. See App. at 111-113. ("I did that on the basis of 18 years'
experience with my office, on the basis of what goes into our files, plus
my involvement at that time with the Food and Drug Administration
responding to the massive requests which have been made to the Food and
Drug Administration for its documents by Scientology under the Freedom of
Information Act.")
FN4. This awareness is evidenced by a letter in the record from Mr.
Richard Merrill of the Office of General Counsel to Ms. Mary Goggin, a
person identified by HEW in its answers to interrogatories as the
individual who supervised the search of the files of the Office of General
Counsel. This memorandum, dated November 18, 1975, states:
This is to confirm the telephone conversation between yourself and Ms. Sisk
of this office in which she informed you that, in so far as we can tell,
all the records which this office might have concerning Scientology are
duplicates of records from the files of the Food and Drug Administration.
The only exception would be the various briefs filed in the various courts
which have considered any case involving Scientology, and those Kreiner
already has.
App. at 8.
The belated search of the files of the Office of General Counsel produced
approximately 230 responsive documents.[FN5] Ms. Sisk's deposition resulted in
the release of 116 documents to Scientology, all but eight of which were copies
of envelopes, transmittal memos, or telephone message slips. It also resulted
in the preparation of a Vaughn index [FN6] for the remaining documents which
were claimed to be exempt from disclosure. On February 25, 1977, Scientology
renounced its claims to 44 of the withheld documents. In June, 1977, HEW
released 31 of the withheld documents following a letter by Attorney General
Bell to the heads of all federal agencies informing them of new policies
concerning FOIA.[FN7] Thus, at the time the district court ruled on the
parties' cross-motions for summary judgment on February 28, 1978, 47 documents
remained in dispute. The district court granted HEW's motion for summary
judgment as to 45 of the documents, ordered partial disclosure of 2 documents,
and directed HEW to provide additional information on three other documents.
FN5. See Brief for Appellants at 9. The district court made no finding on
this point. Since the government has not challenged the figure offered by
Scientology, we accept it as accurate.
FN6. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied,
415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
FN7. In this letter, the Attorney General stated that the government
should not withhold documents unless it is important to the public interest
to do so, even if there is some arguable legal basis for the withholding.
He also declared that in order to implement this policy, the Justice
Department will defend FOIA suits only when disclosure is demonstrably
harmful, even if the documents technically fall within the exemptions in
the Act. App. at 127.
On April 25, 1979, Scientology petitioned the district court for an award of
attorney fees and litigation costs pursuant to section 552(a)(4)(E) of
FOIA. The district court denied the motion on December 19, 1979. After
reviewing the history of the litigation, the district court stated:
In summary, the Church obtained release of 150 documents in litigation, but
of this number, 108 documents were copies of envelopes, transmittal slips and
the like, and 31 others were released as a *587 **332 result of Attorney
General Bell's letter. The Church received just fourteen documents comprising
34 pages, excluding envelopes and transmittal slips, as a result of its FOIA
suit.
In this case, plaintiff only obtained through the discovery process an
insubstantial part of what was sought. While the Court does not accept the
defendants' argument that the plaintiff must win a majority of what is at stake
in order to substantially prevail for purposes of receiving attorney's fees,
the Church was largely unsuccessful in its efforts to obtain release of the
withheld material. The uncovering of documents, unaccompanied by any
substantial release, either voluntarily or by court order, is insufficient to
demonstrate in this case that the plaintiff has substantially prevailed within
the meaning of 5 U.S.C. s 552(a)(4)(E).
The failure to search files completely on receiving the initial FOIA request
and to disclose the existence of the documents once they were discovered is
inexcusable. This failure required the Church to resort to two sets of
interrogatories and a deposition. However, HEW's actions are mitigated here by
the existence of considerable other FOIA litigation by the Church, which led
the agency to assume reasonably that the documents were duplicates of those
available to the Church in other suits. Once defendants located this material
in the Office of General Counsel, through plaintiff's discovery efforts, some
material was released and a Vaughn index was prepared for the rest. Under
these circumstances, HEW's delay in disclosing the existence of the documents,
while regrettable, does not of itself justify an award of attorney's fees.
The Court recognizes that the "fundamental purpose of Section 552(a)(4)(E)
is to facilitate citizen access to the courts to vindicate their statutory
rights," but for that purpose to have any meaning, the statutory prerequisite
that the plaintiff substantially prevail in the case must first exist.
Since the plaintiff has not substantially prevailed, there is no need to
reach the question whether an exercise of the Court's discretion to award
reasonable attorney's fees and expenses is appropriate.[FN8]
FN8. Church of Scientology of California v. Califano, C.A. No. 76-1005,
3-5 (D.C.C. December 18, 1979), App. at 229-31 (citations and footnote
omitted).
Scientology appealed.
II.
(1) As the district court recognized, analysis of a section 552(a)(4)(E)
[FN9] motion for fees and costs requires that two questions be asked and
answered. 1) is the plaintiff "eligible" for such an award, and if so, 2) is
it "entitled" to such an award? See Crooker v. U. S. Department of the
Treasury, No. 80-1412 (D.C.Cir., October 23, 1980); Fenster v. Brown, 617
F.2d 740 (D.C.Cir.1979); Cox v. United States Department of Justice, 601
F.2d 1 (D.C.Cir.1979).
FN9. Section 552(a)(4)(E) 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. s 552(a)(4)(E).
(2) A FOIA plaintiff is eligible for a section 552(a)(4)(E) award if it
has "substantially prevailed". Our cases have established that this is largely
a question of causation did the institution and prosecution of the litigation
cause the agency to release the documents obtained during the pendency of the
litigation? See e. g., Cox, supra; Nationwide Building Maintenance, Inc.
v. Sampson, 559 F.2d 704 (D.C.Cir.1977). As we observed in Cox :
It is true that a court order compelling disclosure of information is not a
condition precedent to an award of fees, Foster v. Boorstin, 182
U.S.App.D.C. 342, 344, 561 F.2d 340, 342 (1977); Nationwide Building
Maintenance, Inc. v. Sampson, 182 U.S.App.D.C. 83, 87, 89, 559 F.2d 704, 708-
10 (1977), but it is equally true that *588 **333 an allegedly prevailing
complainant must assert something more than post hoc, ergo propter hoc,
Vermont Low Income Advocacy Council Inc. v. Usery, 546 F.2d 509, 514 (2d
Cir. 1976). Instead, the party seeking such fees in the absence of a court
order must show that prosecution of the action could reasonably be regarded as
necessary to obtain the information. Vermont Low Income Advocacy Council,
Inc. v. Usery, supra at 513, and that a causal nexus exists between that action
and the agency's surrender of the information, Cuneo v. Rumsfeld, supra 180
U.S.App.D.C. (184) at 190, 553 F.2d (1360) at 1366. Whether a party has made
such a showing in a particular case is a factual determination that is within
the province of the district court to resolve. In making this determination,
it is appropriate for the district court to consider, inter alia 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.
We have elsewhere had occasion to note both the plethora of Freedom of
Information Act cases pending before federal agencies at any given time, and
the time-consuming nature of the search and decision process. See Open
America v. Watergate Special Prosecution Force, 178 U.S.App.D.C. 308, 315, 547
F.2d 605, 612 (1976). If rather than the threat of an adverse court order
either a lack of actual notice of a request or an unavoidable delay accompanied
by due diligence in the administrative processes was the actual reason for the
agency's failure to respond to a request, then it cannot be said that the
complainant substantially prevailed in his suit.
Cox, supra, 601 F.2d at 6 (footnote omitted).
(3) The history of the instant litigation makes clear that Scientology
substantially prevailed, for it shows not only that the institution and
prosecution of this case was "necessary" to obtain the 150 documents ultimately
released by HEW but also that a powerful "causal nexus" exists between the
litigation and HEW's surrender of these documents. Throughout the
administrative processing of Scientology's FOIA request, HEW maintained that
only three card references and three documents fell within the scope of the
request. After Scientology filed suit and began discovery, HEW disclosed that
over 200 responsive documents existed in the files of the General Counsel, and
during the course of the litigation released approximately two-thirds of those
documents. There is absolutely no indication in the record that HEW would have
actually searched the General Counsel's files or released any of the contents
thereof in the absence of this litigation. This is clearly not a case where
the agency, "upon actual and reasonable notice, made a good faith effort to
search out material and to pass on whether it should be disclosed." Cox,
supra, 601 F.2d at 6. On the contrary, it is a case in which the agency, upon
actual and reasonable notice, decided to act upon an assumption as to the
nature of certain material and was then obliged to release most of that
material when the light of litigation exposed the error of its assumption.
That, in our opinion, is the critical point but for the institution and
prosecution of this suit, the documents ultimately obtained by Scientology
would never have been identified and therefore would never have been released.
Under these circumstances, it is clear that the suit was necessary and causally
linked to the release of the documents obtained.
The district court nevertheless found that Scientology had not substantially
prevailed because it "only obtained through the discovery process an
insubstantial part of what was sought" and "was largely unsuccessful in its
efforts to obtain release of the withheld material". The basis for these
comments appears to be the district court's conclusion that Scientology
received "just fourteen documents" as a result of its suit. The premises
underlying this conclusion in turn appear to be twofold: 1) the court's ruling
that the 31 documents released in June, 1978 should be excluded from the tally
of documents obtained, and 2) the court's subjective belief that the 108
envelopes and transmittal slips were too insignificant *589 **334 to be
included in that tally. We think both of these premises are erroneous.
The district court discounted the 31 documents released in June 1978 because
it found that they "were released as a result of Attorney General Bell's
letter" and not as a result of the litigation. We accept this finding, to the
extent that it acknowledges that the Attorney General's letter in the last
analysis precipitated release of the documents and was a cause of their
release. The initiation and prosecution of this litigation, however, was in
our opinion the direct cause of their disclosure, for absent this litigation,
following the unsuccessful administrative request, the General Counsel's files
would never have been searched, the 31 documents would never have been
identified as falling within the scope of Scientology's FOIA request, and the
documents would never have been evaluated to determine whether they should or
could be released under the guidelines set forth in the Attorney General's
letter. The timing of the Attorney General's letter does not eliminate the
fact that if the litigation had never been brought the documents would never
have been disclosed. It was the litigation that produced the 31 documents, not
the letter.
The government argues that release of these 31 documents should be discounted
because to hold otherwise would "punish" HEW for making disclosures more
liberal than commanded by FOIA. We disagree. To the extent that HEW is
"punished", it is not because the agency released documents whose disclosure
FOIA did not require, but because the agency failed to comply with its basic
duty to search its files in response to a proper request. Indeed, we think we
might be punishing Scientology if we discounted documents whose disclosure, in
a very important and fundamental sense, was brought about only as a result of
its lawsuit, and only after this lawsuit forced HEW to comply with the
requirements of the Act. Cf. Halperin v. Department of State, 565 F.2d 699,
706 n.11 (D.C.Cir.1977) (Plaintiff substantially prevails when its litigation
benefits the nation by making an agency aware of the duties imposed upon it by
FOIA) (dicta).
We also think that there is no reason in law or logic to discount the
significance of the 108 envelopes and transmittal slips in determining whether
Scientology substantially prevailed. FOIA mandates that an agency disclose all
identifiable agency "records" in response to a proper FOIA request unless the
documents fall within one of the Act's specific exemptions, See 5 U.S.C. ss
552(a)(3), (B); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 137, 95 S.Ct.
1504, 1510, 44 L.Ed.2d 29 (1975). It is not contended that the envelopes and
buck slips are not "records" within the meaning of the Act, nor that they are
exempt or even arguably exempt from disclosure. Since disclosure of the
envelopes and buck slips was required by FOIA, nothing in the Act in general,
nor in section 552(a)(4)(E) in particular, suggests that their disclosure
should be ignored or discounted in evaluating the relative success of appellant
in this litigation.
Indeed, there is case law that points in the opposite direction. In
Founding Church of Scientology of Washington, D. C., Inc. v. Marshall, 439
F.Supp. 1267 (D.D.C.1977), the Labor Department released several hundred pages
of material pursuant to the plaintiff's administrative appeal. The Department
withheld certain documents in their entirety and made deletions in others. The
withheld documents consisted of a routing slip, a secretarial referral card,
and a note to file. The deletions were of notations and signatures identifying
the author of the letter or memorandum, the typist, the person who signed off
on the document, and those who were to receive carbon copies of it. Id. at
1268. After the plaintiff filed suit and served a set of interrogatories, the
Department released the withheld material, and the plaintiff moved for an award
of attorney's fees and litigation costs. Although the nature of the material
withheld by the Labor Department could have been characterized as unimportant
or insignificant, the court made absolutely no mention of this point and simply
granted the motion because *590 **335 it found that the suit had caused
the release of the material. Id. at 1269-70.[FN10]
FN10. The court properly reduced the amount of the fees requested,
however, to deny compensation for preparation of a second set of
interrogatories which played no part in causing release of the withheld
material. Id. at 1270, 1271.
In sum, both the 31 documents released in June, 1978 and the 108 envelopes and
transmittal slips must be recognized by the district court as having been
released as a result of the litigation in determining whether Scientology
substantially prevailed. When such circumstances are considered, we find that
the litigation caused the release of 150 documents, approximately two thirds of
the documents at issue. Given these facts, there can be no doubt that
Scientology prevailed in its suit, and prevailed to a substantial degree.
Scientology is thus eligible to apply for an award of attorney's fees and
litigation costs under section 552(a)(4)(E).
III.
(4) A plaintiff, however, is not automatically "entitled" to an award under
section 552(a)(4)(E) merely because it is eligible for such an award. See
e. g., Fenster v. Brown, 617 F.2d 740 (D.C.Cir.1979) (District court's
denial of attorney's fees and costs to eligible plaintiff affirmed). Rather,
the decision as to whether to award fees and costs to an eligible party rests
in the sound discretion of the district court, Cox, supra, 601 F.2d at 7.
Our decisions have touched upon some of the factors the district courts should
consider in exercising their discretion, and these include (1) the benefit to
the public if any, derived from the case; (2) the commercial benefit to the
plaintiff; (3) the nature of the plaintiff's interest in the records sought;
and (4) whether the government's withholding of the records had a reasonable
basis of law. Fenster, supra, 617 F.2d at 742; see Cox, supra, 601 F.2d
at 7. We have also reminded the district courts that, in determining whether
an eligible plaintiff is entitled to an award, they must
always keep in mind the basic policy of the FOIA to encourage the maximum
feasible public access to government information and the fundamental purpose
of section 552(a)(4)(E) to facilitate citizen access to the courts to
vindicate their statutory rights. Each of the particular factors ... must be
evaluated in light of these fundamental legislative policies. The touchstone
of a court's discretionary decision under section 552(a)(4)(E) must be
whether an award of attorney's fees is necessary to implement the FOIA.
Nationwide Building Maintenance, Inc., supra, 559 F.2d at 715 (emphasis
added).
Because the district court in this case determined that Scientology had not
substantially prevailed and thus was not eligible for an award of fees and
costs under section 552(a)(4)(E), it did not reach the question whether
Scientology was entitled to such an award. Scientology nevertheless requests
that we direct the district court to award it fees and costs, on the grounds
that the district court's refusal to do so on remand would constitute a gross
abuse of discretion in light of HEW's "recalcitrant and obdurate conduct, both
at the administrative level and during the course of this litigation".
We agree that the propriety of the government's conduct is an important factor
to be considered in determining Scientology's entitlement to the award it
seeks. We also believe, however, that we are not presently in a position to
pass on what would or would not constitute an abuse of discretion given the
facts of this case. The propriety of the government's conduct is but one
variable in the section 552(a)(4)(E) equation, and a section 552(a)(4)(E)
award must be based upon a reasoned consideration of "all relevant factors".
Nationwide Building Maintenance, Inc., supra, 559 F.2d at 705; see also
id. at 714 (district court must consider all factors, and must be careful
not to give any particular factor dispositive weight). The record before us is
simply insufficient for us to evaluate all the relevant factors, especially
since it does not reveal the nature, content or significance of
*591 **336 the documents released to Scientology. More importantly,
however,
in this area where, as we have continually emphasized, Congress has relied on
the broad discretion of the courts, it is better to have that discretion
exercised by the court which has been the most intimately associated with the
case.
Id. at 716. Accord, Crooker, supra, slip op. at 5; Cox, supra, 601
F.2d at 6-7; Cuneo v. Rumsfeld, 553 F.2d 1360, 1368 (D.C.Cir.1977).
Accordingly, we remand the case to the district court for consideration of
whether Scientology is entitled to an award under section 552(a)(4)(E) and
if so to determine the amount thereof.[FN11]
FN11. We note the court's assertion is factually inaccurate that HEW
promptly released some material and prepared a Vaughn index for the rest
once the Office of General Counsel's documents had been located through
plaintiff's discovery efforts. HEW knew at least as of November 18, 1975
that its Office of General Counsel's files contained documents responsive
to Scientology's FOIA request. See n.4 supra. Despite this knowledge, HEW
did not search the files, and did not even disclose that it was operating
under the assumption that Scientology already possessed those documents
which were not exempt from disclosure. Rather, it affirmatively
represented that "no other component of the Department (including the
Office of General Counsel) was able to locate any records pertaining to the
Church of Scientology or any of the other organizations listed in your
request." Only after Scientology filed suit did HEW even disclose the
existence of the Office of General Counsel's documents, and then it claimed
that the documents were exempt without even reviewing the documents in
question. Only after Scientology noticed the deposition of Ms. Sisk did
HEW actually search its files, and release many of the documents. The
agency did not locate the documents through Scientology's discovery
efforts; rather, Scientology's discovery efforts forced the agency to
acknowledge the existence of documents of which HEW was already aware, and
whose existence HEW had refused to reveal. This conduct hardly mitigates
HEW's failure to conduct an actual search of its files in response to
Scientology's initial FOIA request.
Reversed and remanded.