United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2015 Decided January 21, 2016 

No. 14-5230 

JEFFERSON MORLEY, 

APPELLANT

v. 

CENTRAL INTELLIGENCE AGENCY, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:03-cv-02545) 

James H. Lesar argued the cause and filed the briefs for 

appellant. 

Benton Peterson, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Vincent H. 

Cohen, Jr., Acting U.S. Attorney, and R. Craig Lawrence, 

Assistant U.S. Attorney. 

Before: SRINIVASAN, Circuit Judge, and WILLIAMS and 

GINSBURG, Senior Circuit Judges. 

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 
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WILLIAMS, Senior Circuit Judge: Jefferson Morley 

appeals for the second time from the district court’s denial of 

his request for attorney’s fees and costs under the Freedom of 

Information Act (“FOIA”). Morley argues that he is entitled 

to a fee award under the familiar four-factor standard that 

looks to “(1) the public benefit derived from the case; (2) the 

commercial benefit to the plaintiff; (3) the nature of the 

plaintiff’s interest in the records; and (4) the reasonableness of 

the agency’s withholding of the requested documents.” Davy 

v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008) (citations 

omitted). Because the district court improperly analyzed the 

public-benefit factor by assessing the public value of the 

information received rather than “the potential public value of 

the information sought,” id. (citations omitted), we must 

vacate and remand again. 

* * * 

Morley is a journalist and news editor who has written 

about the assassination of President John F. Kennedy. In 

2003 he submitted a FOIA request to the Central Intelligence 

Agency for all records related to CIA officer George E. 

Joannides. Morley believed that information on Joannides 

could shed new light on President Kennedy’s assassination 

because Joannides had served as the CIA case officer for 

Directorio Revolucionario Estudantil (“DRE”), one of the 

Cuba-focused organizations with which Lee Harvey Oswald 

was in contact in the months before the assassination. 

Receiving only a communication from the CIA that records on 

President Kennedy’s assassination had been sent to the 

National Archives and Records Administration, Morley filed 

suit. The ensuing litigation spanned over a decade and led to 

the production of several hundred documents, a subset of 

which are in fact publicly available in the Archives. Morley 

contends that some of the documents turned over—a couple of 

travel records and a photograph and citation relating to a 
3

career medal once received by Joannides—shed some light on 

President Kennedy’s assassination, but the value of these 

documents is at best unclear.

In 2010 Morley sought attorney’s fees as a substantially 

prevailing party. See 5 U.S.C. § 552(a)(4)(E)(i). The district 

court denied the fee request. Morley v. CIA, 828 F. Supp. 2d 

257, 265-66 (D.D.C. 2011). While acknowledging that “the 

Kennedy assassination is surely a matter of public interest,” 

id. at 262 (citation omitted), the district court concluded that 

the public-benefit factor weighed strongly against a fee award 

because the actual documents produced by the CIA provided 

little if any public benefit, see id. at 262-64. After analyzing 

the remaining three factors, the district court concluded that 

Morley was not entitled to fees. Id. at 264-66. 

This court vacated and remanded because the district 

court had failed to consider the analysis of the public-benefit 

factor in Davy, a decision that also concerned a FOIA request 

for documents related to President Kennedy’s assassination. 

Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013). 

On remand, the district court again denied fees, 

explaining that Davy “d[id] not alter [its] original conclusion 

that ‘this litigation has yielded little, if any, public benefit—

certainly an insufficient amount to support an award of 

attorney’s fees.’” Morley v. CIA, 59 F. Supp. 3d 151, 155 

(D.D.C. 2014) (emphasis in original) (quoting Morley, 828 F. 

Supp. 2d at 262). While noting the Davy court’s conclusion 

that the requested information served a public benefit because 

of its alleged nexus to the Kennedy assassination, the district 

court rejected the idea that Davy had “create[d] a category of 

records that automatically satisfy the [public-benefit] factor 

based on a plaintiff’s claims of a relationship to [President 

Kennedy’s] assassination.” Id. (As developed below, we 

agree with the point that a plaintiff’s “claims” of a 
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relationship to the assassination aren’t enough to establish a 

public benefit.) Analyzing the particular documents that 

Morley received, the court concluded that “this litigation has 

benefited the public only slightly, if at all.” Id. at 158. The 

released documents either were previously publicly available, 

id. at 156, or “shed very little, if any, light on Joannides’s 

involvement in the events surrounding the Kennedy 

assassination,” id. at 158. 

* * * 

The district court erred in concluding that the merits case 

had not yielded a public benefit. We agree that the released 

documents appear to reveal little, if anything, about President 

Kennedy’s assassination. Morley contends that the released 

travel records indicate that Joannides may have been in New 

Orleans at the time that Warren Commission investigators 

were interviewing DRE members about their contacts with 

Oswald, and that the career medal reflects the CIA’s approval 

of Joannides’s conduct as its case officer for the DRE and as 

liaison between the CIA and the House Select Committee on 

Assassinations. The plausibility and value of these inferences 

are at best questionable, but are ultimately of little relevance 

as Davy required the court to assess “the potential public 

value of the information sought,” Davy, 550 F.3d at 1159 

(citations omitted), not the public value of the information 

received. The purpose of the fee provision is “to remove the 

incentive for administrative resistance to disclosure requests 

based not on the merits of exemption claims, but on the 

knowledge that many FOIA plaintiffs do not have the 

financial resources or economic incentives to pursue their 

requests through expensive litigation.” Id. at 1158 (quoting 

Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711 

(D.C. Cir. 1977)). “[S]hifting to the plaintiff the risk that the 

disclosures will be unilluminating” would defeat this purpose 

because “[f]ew people . . . would stake their financial 
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resources on litigation when they can know nothing about the 

documents or their contents prior to their release.” Id. at 1162 

n.3; see also id. at 1164-65 (Tatel, J., concurring). 

To be sure, Davy notes that assessing the public benefit 

also requires considering “the effect of the litigation,” and 

while the court’s analysis focuses on “[t]he information Davy 

requested,” there is some discussion of the actual documents 

released. Id. at 1159 (majority opinion). But “the effect of 

the litigation” inquiry is properly understood as asking simply 

whether the litigation has caused the release of requested 

documents, without which the requester cannot be said to 

have substantially prevailed. See id. (suggesting that 

assessing “the value of the litigation” “presents a variation on” 

the question whether the plaintiff has “substantially 

prevail[ed]”). Lest there be any uncertainty, we clarify that 

the public-benefit factor requires an ex ante assessment of the 

potential public value of the information requested, with little 

or no regard to whether any documents supplied prove to 

advance the public interest. We can imagine a rare case 

where the research harvest seemed to vindicate an otherwise 

quite implausible request. But if it’s plausible ex ante that a 

request has a decent chance of yielding a public benefit, the 

public-benefit analysis ends there. 

Of course a bare allegation that a request bears a nexus to 

a matter of public concern does not automatically mean that a 

public benefit is present. To have “potential public value,” 

Davy, 550 F.3d at 1159, the request must have at least a 

modest probability of generating useful new information 

about a matter of public concern. The higher this probability 

and the more valuable the new information that could be 

generated, the more potential public value a request has. The 

nature of the subject that the request seeks to illuminate is 

obviously important. Where that subject is the Kennedy 

assassinationan event with few rivals in national trauma and 
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in the array of passionately held conflicting 

explanationsshowing potential public value is relatively 

easy. This of course does not mean that a requester’s mere 

claim of a relationship to the assassination ipso facto satisfies 

the public interest criterion. Cf. Morley, 59 F. Supp. 3d at 

155. 

Morley’s request had potential public value. He has 

proffered—and the CIA has not disputed—that Joannides 

served as the CIA case officer for a Cuban group, the DRE, 

with whose officers Oswald was in contact prior to the 

assassination. Travel records showing a very close match 

between Joannides’s and Oswald’s times in New Orleans 

might, for example, have (marginally) supported one of the 

hypotheses swirling around the assassination. In addition, this 

court has previously determined that Morley’s request sought 

information “central” to an intelligence committee’s inquiry 

into the performance of the CIA and other federal agencies in 

investigating the assassination. Morley v. CIA, 508 F.3d 

1108, 1118 (D.C. Cir. 2007). Under these circumstances, 

there was at least a modest probability that Morley’s request 

would generate information relevant to the assassination or 

later investigations. 

The district court suggested that Morley is not entitled to 

fees incurred in connection with documents that were 

available to him (and the public generally) in the Archives. 

Morley, 59 F. Supp. 3d at 156. The district court’s basic point 

was correct: whether documents are already in the public 

domain is significant because it undermines any claim that the 

requester’s use of FOIA had provided public access to the 

documents. See Tax Analysts v. U.S. Dep’t of Justice, 965 

F.2d 1092, 1094-95 (D.C. Cir. 1992). But, unlike the 

requester in Tax Analysts, who sought publicly available tax 

decisions, Morley had no reason to believe that all records 

pertaining to Joannides would be available. Moreover, at oral 
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argument Morley’s counsel claimed that extracting documents 

of this sort from the Archives is a laborious and unreliable 

process—and that some documents in the Archives cannot be 

electronically located because of missing record identification 

forms, which record information about each document for 

input into an electronic database. The Archives website does 

not clearly confirm or contradict this claim, but does indicate 

that “[n]ot all the material found in the Collection is indexed 

in the database.” JFK Assassination Records Collection 

Reference System, https://www.archives.gov/research/jfk/ 

search.html#reference (last visited Jan. 4, 2016). 

Before denying any fees on the ground that some of the 

documents were available in the Archives, the district court 

should consider (1) whether fees incurred in connection with 

such documents are segregable and, if so, (2) whether the 

difficulties recited above nonetheless militate against denial of 

fees for such documents. 

Following the prior remand on the fees issue, the district 

court declined to reevaluate any factors other than public 

benefit, or to rebalance the factors, despite this court’s 

suggestion in Davy that the first three factors are all addressed 

to the distinction “between requesters who seek documents for 

public informational purposes and those who seek documents 

for private advantage.” Davy, 550 F.3d at 1160. On remand, 

the district court should consider the remaining factors and the 

overall balance afresh. 

* * * 

The judgment of the district court is vacated and the case 

is 

 Remanded.