The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., INC., Plaintiff,
F. Ray MARSHALL et al., Defendants.
Civ. A. No. 76-1131.
United States District Court, District of Columbia.
Nov. 8, 1977.
Religious organization moved for award of attorney fees and expenses in
Freedom of Information Act litigation and, after resolution of that issue, for
voluntary dismissal of action against Department of Labor and Secretary of
Labor. The District Court, Barrington D. Parker, J., held that: (1) efforts
expended by organization after release of withheld material, except those
directed toward obtaining award of attorney fees and expenses, could not be
considered in any possible award of fees and expenses; (2) Department of
Labor's legal basis for withholding materials was not reasonable in relation to
exemptions claimed, and thus, where Department of Labor released materials
requested by organization, organization was entitled to award of attorney fees
and expenses, and (3) organization was entitled to attorney fee calculated at
requested rate of $60 per hour.
See also, D.C., 434 F.Supp. 632.
Department of Labor's efforts to inform religious organization of what material
requested under Freedom of Information Act would be withheld did not, in
themselves, constitute compliance with Freedom of Information Act. 5
U.S.C.A. s 552.
Freedom of Information Act permits award of attorney fees and costs in a
situation where agency renders litigation moot by releasing requested material,
and only requirement is that movant substantially prevail, which he may do by
causing release of information through litigation. 5 U.S.C.A. s
Finding that movant has substantially prevailed in its Freedom of Information
Act litigation by obtaining release of withheld material does not guarantee
recovery of all related fees and expenses irrespective of their causative
relationship with release of information. 5 U.S.C.A. s 552.
Efforts expended by religious organization after Department of Labor released
material which religious organization requested under Freedom of Information
Act, except those efforts directed toward obtaining award of attorney fees and
expenses, could not be considered in any possible award of fees and expenses
pursuant to section of Act. 5 U.S.C.A. ss 552, 552(a)(4)(E).
Freedom of Information Act, in specifically authorizing award of attorney fees
and expenses, contemplates expenditure of time and expense in obtaining such
award. 5 U.S.C.A. ss 552, 552(a)(4)(E).
To find that movant has substantially prevailed in its Freedom of Information
Act litigation only initiates analysis of whether award of attorney fees and
expenses should be made, and other factors to be considered include public
benefit, commercial benefit to complainant, nature of complainant's interest in
records sought, and reasonableness of government's legal basis for withholding
material. 5 U.S.C.A. s 552(a)(4)(E).
Where deletions made by Department of Labor from material requested by
religious organization under Freedom of Information Act consisted of notations
and signatures which could identify persons within Department who had been
involved with documents concerning the religious organization and where
requested documents in which deletions were made were not exempt under claimed
exemptions, Department of Labor's legal basis for withholding materials was not
reasonable in relation to exemptions claimed, and thus religious organization
was entitled to award of attorney fees after organization obtained release of
withheld material. 5 U.S.C.A. ss 552, 552(a)(4)(E).
Identities of agency personnel are usually not exempt in themselves under
Freedom of Information Act but only insofar as they fall within a valid
exemption for document of which they are a part. 5 U.S.C.A. ss 552,
Religious organization was entitled to award of attorney fees under Freedom of
Information Act calculated at the requested rate of $60 per hour for time spent
in successfully seeking release of material under Act and in seeking award of
attorney fees and expenses under the Act. 5 U.S.C.A. ss 552,
Alleged criminal activity of religious organization was not relevant to
proceeding brought by religious organization for award of attorney fees and
expenses under Freedom of Information Act. 5 U.S.C.A. ss 552,
*1268 Samuel H. Seymour, Robert A. Seefried, Washington, D.C., for
Karen I. Ward, Washington, D.C., for defendants.
(Awarding Attorney Fees and Dismissing the Proceeding)
BARRINGTON D. PARKER, District Judge.
Plaintiff, the Founding Church of Scientology of Washington, D.C., Inc., has
moved for an award of attorney fees and expenses in this Freedom of Information
Act litigation and, after resolution of that issue, for voluntary dismissal of
this action against the Secretary and Department of Labor. The question
presented is whether the Court should exercise the broad discretion accorded it
by 5 U.S.C. s 552(a)(4)(E) and grant the requested award. After considering
the papers and affidavits submitted by the parties, as well as the record in
this case, the Court concludes that plaintiff's motion for attorney fees and
expenses should be granted, although in an amount less than that requested.
Having thus disposed of the sole remaining issue in this litigation,
plaintiff's motion for voluntary dismissal should also be granted.
 On November 22, 1974, the Founding Church of Scientology of Washington,
D.C., Inc. ("Church") submitted a request pursuant to the Freedom of
Information Act ("FOIA" or "Act"), 5 U.S.C. s 552, for all documents in the
possession of the Department of Labor ("Department") relating to the activities
or operations of Scientology. After some preliminary correspondence between
the Church and the Department concerning the scope of the FOIA request, the
Department formally notified the Church that it was unable to respond without
further information. Pursuant to an administrative appeal, the Church obtained
the release of several hundred pages of material. However, the Department
continued to withhold 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 it, and those who were to receive carbon copies of
it. [FN1] In *1269 withholding this material, the Department relied
primarily upon exemptions two and five of the Freedom of Information Act. [FN2]
FN1. Defendant's Opposition to Plaintiff's Motion for an Award of
Attorneys Fees and Expenses ("Def. Opp."), Exhibit A. It appears that the
Department made an effort to inform the Church of what material would be
withheld. Def. Opp., Exhibit B (Affidavit of Miriam McD. Miller) at 4-5.
While such efforts are commendable, they do not in themselves constitute
compliance with the Act.
FN2. 5 U.S.C. s 552(b) provides in part,
(b) This section does not apply to matters that are--
(2) related solely to the internal personnel rules and practices of an
(5) inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the
Although the Department also relied upon exemption six for its withholding
of two documents, those documents were destroyed prior to the release of
the other material involved in this litigation. See note 3, infra ;
Defendant's Answer to Plaintiff's First Set of Interrogatories at 11-12,
18-20. Exemption six, relating to "personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy," 5 U.S.C. s 552(b)(6), is not applicable
to any of the released material and, since the Church has apparently given
up any claim to material for which the exemption was claimed, see Motion
for an Order Awarding Fees and Expenses to Plaintiff and Dismissing this
Action, the validity of exemption six in this case is not now before the
On June 18, 1976, the Church filed suit to compel disclosure of the withheld
material, alleging that the statutory exemptions were inapplicable. After an
unsuccessful attempt by the Department to dismiss the action, the Church filed
a first set of interrogatories. The Department indicated in its answer that it
had reconsidered its position with respect to the deletions and withheld
documents. While still arguing that the materials were within the scope of the
claimed exemptions, the Department determined that release of the information
would not harm the Department or the public interest.
The subsequent release of the material did not signal the end of this
litigation. Instead, the Church, concerned that some documents in the
Department's possession had been destroyed or not located, filed a second set
of interrogatories. [FN3] After the Department filed its response to those
questions, the Church filed the present motion for attorney fees and expenses
and for voluntary dismissal of this action. [FN4]
FN3. The Church's concern derived from a statement contained in the letter
notifying the Church of the decision by the Department to release the
remainder of the material. The letter, from William J. Kilberg, Solicitor
of Labor, stated that "some of the documents contained in the Church of
Scientology file have been destroyed as they were either not related to the
Church of Scientology or were no longer needed by the Department and were
obtainable from other sources." Def. Opp., Exhibit A.
FN4. The Department argues that the motion to dismiss filed by the Church
indicates that the Church was satisfied by the answers given to the second
set of interrogatories. Def. Opp. at 6. The Church responds that the
answers did not resolve the matter of destruction of documents to the
Church's satisfaction, but only failed to provide sufficient evidence upon
which to proceed further. Memorandum of Points and Authorities filed August
8, 1977, in connection with Plaintiff's Supplemental Motion for an Order
Awarding Fees and Expenses to Plaintiff and Dismissing this Action, at 5.
 The parties do not dispute the power of the Court to award attorney fees
and expenses in this action. It is well-settled that 5 U.S.C. s
552(a)(4)(E) [FN5] permits an award in a situation where the agency renders the
litigation moot by releasing the requested material. The only requirement is
that the movant "substantially prevail," which he may do by causing the release
of the information through litigation. Nationwide Building Maintenance,
Inc. v. Sampson, 559 F.2d 704 (D.C.Cir. 1977); Cuneo v. Rumsfeld, 553 F.2d
1360 (D.C.Cir. 1977); Vermont Low Income Advocacy Council, Inc. v. Usery,
546 F.2d 509 (2d Cir. 1976); Goldstein v. Levi, 415 F.Supp. 303 (D.D.C.
FN5. s 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.
In the present case, the Church has substantially prevailed. When the
Department refused to release all of the requested material *1270 the Church
was forced to institute this action to compel release. There is no indication
that the Department would have released the material absent the litigation
efforts of the Church. [FN6]
FN6. Thus, this case is distinguishable from Vermont Low Income
Advocacy Council, Inc. v. Usery, 546 F.2d 509 (2d Cir. 1976), where the
agency attempted to comply with the FOIA request, but was unable to do so
because of excusable delay. As soon as the agency was able to comply, it
turned over the requested information. The suit pending against the agency
had no effect on release of the information.
 The Court is concerned, however, with the conduct of the Church
after release of the withheld material. The time and expense relating to the
second set of interrogatories can hardly be said to have had any causative
effect on the prior release of the information. A finding that the movant has
substantially prevailed in its FOIA litigation by obtaining the release of
withheld material does not guarantee recovery for all related fees and
expenses, irrespective of their causative relationship with the release of the
information. Vermont Low Income Advocacy Council, Inc. v. Usery, supra at
513. The Court concludes that the efforts expended by the Church after the
release of the withheld material, except those directed toward obtaining an
award of attorney fees and expenses, [FN7] cannot be considered in any possible
award of fees and expenses in this action.
FN7. The statute, in specifically authorizing an award of attorney fees
and expenses, contemplates an expenditure of time and expense in obtaining
it. Allowing recovery of such expenditures furthers the "fundamental
purpose of section 552(a)(4)(E) to facilitate citizen access to the
courts to vindicate their statutory rights." Nationwide Building
Maintenance, Inc. v. Sampson, 559 F.2d 704, 715 (D.C.Cir.1977). No similar
effect would result from including in an award efforts such as those made
in connection with the second set of interrogatories propounded by the
Church in this case.
 To find that the movant has substantially prevailed in its FOIA
litigation only initiates the analysis of whether an award of attorney fees and
expenses should be made. Certain factors influence the exercise of judicial
discretion under s 552(a)(4)(E), including: (1) the public benefit; (2) the
commercial benefit to the complainant; (3) the nature of the complainant's
interest in the records sought; and (4) the reasonableness of the government's
legal basis for withholding the material. Nationwide Building Maintenance,
Inc. v. Sampson, supra at 712.
Despite the Department's assertion that the Church is a large corporate
entity, there is no indication whatsoever that the Church would derive any
commercial benefit from the release of the information. The factors of public
benefit and the complainant's interest seem to be slightly in the Church's
favor in light of the involvement, albeit minimal, of religious freedom
considerations. Since none of these factors argue strongly for granting or
denying the award, the Court must turn to the determinative question of whether
the Department acted reasonably in withholding the material. [FN8]
FN8. In Nationwide, the Court noted that "if the government only
establishes that it had a reasonable basis in law for resisting disclosure
it may be proper to deny a FOIA plaintiff's motion for attorney fees unless
other factors affirmatively justify such an award." 559 F.2d at 712
The Department urges that the withheld material was covered by the claimed
exemptions. The Church responds that the burden of showing the exempt
character of the material is on the government and that no attempt has been
made to fulfill that burden. Although the released documents are available for
the Court's determination of the validity of the exemptions, the Court must
decline the invitation to rule explicitly on the very issues mooted by the
release of the information in this case. Instead, the Court considers the
material only insofar as it may disclose a reasonable basis for the
 As noted, the deletions made by the Department consisted of notations
and signatures which could identify persons *1271 within the Department who
had been involved with documents concerning Scientology. Identities of
personnel, however, are usually not exempt in themselves, cf. Ditlow v.
Shultz, 170 U.S.App.D.C. 352, 517 F.2d 166 (1975) (exemption six), Getman v.
N.L.R.B., 146 U.S.App.D.C. 209, 450 F.2d 670, 675 (1971) (exemption six), but
only insofar as they fall within a valid exemption for the document of which
they are a part, Tax Reform Research Group v. I.R.S., 419 F.Supp. 415, 423-
24 (D.D.C.1976). A perusal of the documents in which deletions were made
discloses nothing which would exempt those documents under either exemption two
or five. See Vaughn v. Rosen, 173 U.S.App.D.C. 187, 523 F.2d 1136 (1975).
Of the documents which were completely withheld, not one appears to include
information actually involved in the deliberative process of the Department as
required by the claimed exemption five. Id.
In view of the above, the Court concludes that the Department's legal basis
for withholding the materials was not reasonable in relation to the exemptions
claimed. In reaching this conclusion, the Court notes that neither party
presented cogent arguments as to why the exemptions were valid or invalid.
However, in order to effectuate the purpose of s 552(a)(4)(E) to "facilitate
citizen access to the courts to vindicate their statutory rights," the Court
must be wary of a "grudging application of this provision, which would dissuade
those who have been denied information from invoking their right to judicial
review." Nationwide Building Maintenance, Inc. v. Sampson, supra at 715.
Exercising the broad discretion accorded by statute, in light of the
circumstances of this case, the Court concludes that an award of attorney fees
and expenses should be made.
 The Church requests an award of $5,370 in attorney fees and $238.09
in litigation expenses. The affidavit of counsel indicates that 84.5 hours
have been spent on this litigation to date and that another five hours would be
expended in completing this litigation, for a total of 89.5 hours. [FN9]
Subtracting the amount of time expended after the release of the withheld
materials, the Court determines that the compensable time totals 78.25 hours.
[FN10] Since the requested rate of $60 per hour is reasonable, cf. American
Federation of Government Employees v. Rosen, 418 F.Supp. 205 (N.D.Ill.1976),
the total attorney fee award is $4,695. The Court also determines that the
requested expenses are reasonable, with the exception of amounts claimed for
post-release efforts, and therefore awards a total of $221.34 for expenses
incurred in this litigation.
FN9. Supplemental Affidavit of Robert A. Seefried, filed August 8, 1977.
FN10. The Court notes that a substantial amount of time and expense was
expended solely in the effort to obtain attorney fees. While the Court
recognizes such efforts as compensable, see note 7, supra, only so much as
is necessary to clearly present the issues to the Court will be allowed.
In this case, the issue of an award was hotly contested with each party
filing several papers directed to the question. The Court finds that each
pleading filed by the Church was reasonably required to present its
position to the Court or, in some instances, to respond to an assertion
made by counsel for the Department.
The Court wishes to indicate that it is particularly disturbed with the
conduct of the Department in referring to a criminal matter in which the
Church is involved. See Defendant's Supplemental Opposition to Plaintiff's
Motion for an Award of Attorneys Fees and Expenses. The Department's
assertion that the alleged criminal activity of the Church in that matter
is relevant to the present proceeding for an award of attorney fees and
expenses under the Act must be and is flatly rejected.
Accordingly, it is this 8th day of November, 1977,
ORDERED that plaintiff's motion for an award of attorney fees and expenses
incurred in this Freedom of Information Act litigation is granted and that
defendants shall pay plaintiff the sum of Four Thousand Nine Hundred and
Sixteen Dollars and Thirty-Four Cents ($4,916.34) for such fees and expenses;
and it is
*1272 FURTHER ORDERED that plaintiff's motion for voluntary dismissal of
this action pursuant to Rule 41, Federal Rules of Civil Procedure, is
granted and this action is dismissed.