### UNITED STATESDISTRICT COURT FORTHE DISTRICT OF COLUMBIA JEFFERSONMORLEY, Plaintiff,


### v. UNITED STATES CENTRAL INTELLIGENCE AGENCY, Defendant. (December ) ) ) 

### ) Civil Case No. 03-2545 (RJL) ) ) ) ) )

# ~ DUM OPINION ,2011) [#107] Plaintiff, Jefferson Morley, moves for an award ofattorney's fees and costs against the Central Intelligence Agency ("CIA" or "Agency") under 5 U.S.C. § 552(a)(4)(E) ofthe Freedom ofInformationAct ("FOIA"). After careful review ofthis motion, the applicable law, and the entire record herein, plaintiffsmotion is DENIED. 

### BACKGROUND The facts ofMorley's case are detailed in prior opinions ofthis Court and our Court ofAppeals. See generallyMorley v. CIA, 699 F. Supp. 2d 244 (D.D.C. 2010) ("Morley 11'); Morley v. CIA, 453 F. Supp. 2d 137 (D.D.C. 2006) ("Morley 1'), ajJ'din part, rev'dinpart, 508 F.3d 1108 (D.C. Cir. 2007) ("Morley"). Accordingly, I will summarize only those facts that directly bear on Morley's motion for attorney's fees. Plaintiffis ajournalist, author, and news editor who has written about President John F. Kennedy's assassination. See Morley, 508 F.3d at 1113. OnJuly 4,2003, he requested from the CIA, through FOIA, "all records pertaining to CIA operations officer

1GeorgeEfythron 10annides
... including, but not limited to" seventeen specific categories ofrecords. Compi. Ex. 1 ("Morley Letter") 1-3 [Dkt. # 1-1]. Morley's interest in 10annides stems from his beliefthatthe former CIA officerwas "uniquelywellpositioned to observe and report" onthe Kennedy assassination. Morley Letter 3. The CIA initially responded to Morley's request by directing him to records relating to the Kennedy assassination that the CIA had transferredto theNational Archives and Records Administration ("NARA"). See Morley, 508 F.3d at 11l3. After further review, the CIAreconsidered its position and, in several productions in 2004 and 2005, sent Morley 3 complete documents, 2 documents in segregable form, and 113 redacted documents. See id. at 1114.1 Based onthese document searches andproductions, this Court granted summary judgmentin the Agency's favor. See Morley 1,453 F. Supp. 2d at 144-57. Onreview,
our Circuit Court affirmed in part and reversed in part. See Morley, 508 F.3d at 11l3, 1129. Specifically, the Court ofAppeals remanded the case for the CIAto: (1) search its operational files, which it had not donepreviously, id. at 1116-19; (2) search the records it transferred to NARA, id. at 1119-20; (3) supplement its explanation regarding certain monthly reports, which Morleybelieves should have been filed by 10annides, id. at 1120- 21; (4) provide additional details describing the scope ofits search, id. at 1121-22; (5) explain to this Court's satisfactionwhy the withheld information was not segregable, id.

The CIAjustifiedthese redactions and its withholding ofothermaterial under various FOIA Exemptions including Exemptions 1,2,3, 5,6, 7(C), 7(D), and 7(E). Id. 

### It also issued a Glomar response, whereby it declinedto confirm ordeny the existence of certain records requested byMorley. See id.

2at 1123; (6) substantiate its Glomarresponse, id. at 1126; and (7) provide additional justification for withholding documents underFOIA exemptions 2, 5, and 6, id. at 1124- 28. Simultaneously, our Circuit affirmed this Court's decision concerning the CIA'suse ofFOIA to respond to Morley's document request, the adequacy ofthe CIA's Vaughn index, and the CIA's withholding ofmaterial underFOIA Exemptions 1,3, and 7(3). Id. at 1129. In response to our Circuit's decision, the CIA in 2008 conducted additional searches and produced additional material to Morley. In particular, on April 28, 2008, the CIA released 113 responsive records from the files it previously transferred to NARA, and on August 6, 2008, another 293 responsive records from the CIA's files. Pl.'sMem. P&A Supp. Pl.'s Mot. Award Att'y's Fees & Costs ("Pl.'s Mem.") 6 [Dkt. # 107]. The CIA then filed arenewed motion for summaryjudgment. Def.'s Renewed Mot. Summ. J. [Dkt. #88]. Finding that the CIA conducted adequate searches and properlyjustified its withholdings under applicable FOIA exemptions, this Court granted the CIA's motion. MorleyII, 699 F. Supp. 2d at 258. Morley now moves this Court for
an award ofattorney's fees and costs. Pl.'s Mot. Award Att'y's Fees & Costs ("Pl.'s Mot.") 1 [Dkt. #107]. The CIA opposes this motion. Def.'s Opp'nPl.'s Mot. Att'y's Fees & Costs ("Opp'n") [Dkt. #109]. 

### ANALYSIS A. Legal Standard UnderFOIA, a court "may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case underthis section in which

3the complainanthas substantially prevailed." 5 U.S.C. § 552(a)(4)(E). To obtain this award, aplaintiffmust make two separate showings: (1) he is eligible for an award of attorney's fees and (2) he is entitledto that award. Weisberg v. Us. Dep 't of Justice, 745 F.2d 1476,1495 (D.C. Cir. 1984). First, to be eligible for attorney's fees, a plaintiffmust have "substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). Next, and equally necessary, the plaintiffmust also show the court thathe is entitledto such an award. TaxAnalysts v. Us. Dep 't of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992), supersededbystatute on othergrounds, OPEN GovernmentAct of2007, Pub. L. No. 110-175, 121 Stat. 2524. In determining whether a FOIA litigant is entitled to fees, a court must considerthe following four, nonexhaustive factors: "1) the public benefit derived from the case; 2) the commercial benefit to theplaintiff; 3) the nature ofthe plaintiffs interest in the records; and 4) whetherthe government has a reasonable basis for withholding the requested information." Cotton v. Heyman, 63 F.3d 1115, 1117 (D.C. Cir. 1995) (internal citation omitted). But, there is no "presumption in favor ofawarding attorney fees" to prevailing FOIA litigants," and "the legislative history ofsection 552(a)(4)(E) evinces a clear congressional intentto leave the courts' broad discretion when considering a request for attorney fees." Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 713-14 (D.C. Cir. 1977); see also TaxAnalysts, 965 F.2d at 1094 ("The sifting ofthose criteria
overthe facts ofa case is a matter ofdistrict court discretion
....") (internal citation omitted).

4B. PlaintiffIs NotEntitled to an Award ofAttorney's Fees and Costs. Morley contends that he is both eligible and entitled to an award ofattorney's fees underFOIA. PI.'s Mem. 8, 10. The CIA does not contest whetherMorley is eligible to receive attorney's fees; instead, the Agency argues that Morley has failed to show that he is entitledto attorney's fees under any ofthe four factors. Opp'n 2. Forthe following reasons, I agree with the CIA and conclude that Morley is not entitledto an award of attorney's fees in this case.2 1. Public Benefit The public benefit factor "speaks for an award ofattorney's fees when the complainant's victory is likely to add to the fund ofinformationthat citizens may use in making vital political choices." Cotton, 63 F.3d at 1120 (quoting Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979). Relevant considerations for this factor include the
2 Because I agree with the CIAthatMorley is not entitled to attorney's fees, I need not, and will not, analyze whetherMorley is also eligible for an award. Although the CIA does not directly contest Morley's eligibility, the parties are not in agreement onthe governing standard for whether aplaintiffhas substantially prevailed. Plaintiffcontends that, because this Court's final ruling followed the enactment ofthe OPEN Government Act of2007, Pub. L. No. 110-175, 121 Stat. 2524, amending 5 U.S.c. § 552(a)(4)(E), that statute applies to this case. PI.'s Mem. 8-10. Under that statute's language, aplaintiff substantially prevails "ifthe complainant has obtained reliefthrough either-(I) ajudicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, ifthe complainant's claim is not insubstantial." §552(a)(4)(E)(ii). Defendant states that because Morley filed his case priorto this statute's enactment, this Court may not apply the statute retroactively and is bound to apply BuckhannonBd. & Care Home, Inc. v. W Va. Dep'to/Health & Human Res., 532 U.S. 598 (2001). Opp'n7-9. Priorto the OPEN GovernmentAct's enactment, Buckhannon controlled attorney's fee eligibility. Buckhannon heldthat "enforceable judgments on the merits and court-ordered consent decrees create the 'material alteration ofthe legal relationship ofthe parties' necessary to permit an award ofattorney's fees." 532 U.S. at 604 (quoting Tex. State TeachersAss'n v. GarlandIndep. Sch. Dist., 489 U.S. 782, 792-93 (1989)).

5disclosure's "likely degree ofdissemination and the public impact that canbe expected," Peter S. Herrick's Customs & Int'l Trade Newsletter v. Us. Customs & Border Protection, No. 04-377, 2006 WL 3060012 at *4 (D.D.C. Oct. 26, 2006) (internal citation and quotations omitted), andthe extentto which the information is alreadypublically available, TaxAnalysts, 965 F.2d at 1094. As such, thepublicbenefit should be measured by the "the specific documents at issue in the case at hand." Cotton, 63 F.3d at 1120. Morley contends that "[a]s an author andjournalist, [he] is in the favored class of requesters who 'ordinarily' would be awarded attorney's fees." PI.'s Mem. 11. And, indeed, Morley requested documents regarding Joannides to gain information aboutthe Kennedy assassination. Id. at 11-12; see also Morley Letter 3. While the Kennedy assassination is surely a matter ofpublic interest, see Weisberg, 543 F.2d at 311, this litigation has yielded little, ifany, public benefit-certainly an insufficient amountto support an award ofattorney's fees. Here, in response to ourCircuit's decision, the CIA in 2008 conducted additional searches and produced to Morley 113 documents from the set ofdocuments previously transferred to NARA ("Kennedy-assassination documents") and 293 documents from the CIA's operational files related to Joannides'spersonnel records. PI.'s Mem. 5-6; Opp'n 5-6. Morley appears to claim thatthe public benefitprimarily derives from the Kennedyassassination documents. See PI.'s Reply Def.'s Opp'n ("Reply") 4-6,8-9 [Dkt. #112-

61]; PI.'s Resp. Def.'s Surreply ("PI.'s Resp.") 2-5 [Dkt. #119].3 This litigation didnot, however, leadto the publication ofthe Kennedy-assassination documents. Instead, the Kennedy-assassination documents obtainedby Morley throughthis FOIA litigation are identicalto the documents which were previously released underthe PresidentJohn F. Kennedy Assassination Records Act of 1992 ("JFKAct") to NARA and were already in the public domain. Deci. ofD. Nelson ("Nelson Decl.")**~** 42, Nov. 21,2008 [Dkt. #89]; PI.'s Reply 9 ("The copies ofthe CIArecords regarding Joannides referredtoNARA werereleased to Morley as official JFK ActReleases with this status and the date ofthe release noted onthe face ofthe document."). As such, Morley cannot claimthat any ofthis information "add[s] to the fund ofinformation that citizens may use in making vital political choices." Cotton, 63 F.3d at 1120.4 Indeed, Morley admits as much in this case when, referencing a document marked "JFKActRelease," PI. Ex. 1 [Dkt. # 112-2], he states: "ThroughMorley's use ofthis and other CIA materials he

3 In his initial motion, Morley did not attemptto showthat the specific documents disclosedthrough this litigation conferred a public benefit. See PI.'s Mem. 11-12. Instead, Morley initially relied only on his ownunsupported assertion that "[t]here is no reason why he should beremoved from the class ofrequesters who are ordinarily awarded fees" and the general fact that information related to the Kennedy assassination concerns the public interest. Id.
4 In a declaration filed withhis reply brief, Morley claims that "this casehas yielded a trove ofrevelations thathave intrigued news editors, JFK scholar [sic], andthe reading public." Morley Deci.**~** 4, July 19,2010 [Dkt. #112-4]. Morley then describes news coverage concerning this litigation, including some articles he authored. Id. at 2-4; PI.'s Reply 4-5. But, he fails to explain how any ofthis information is distinguishable from that already available atNARA.

7obtained from NARA, he enriched public understanding ofsuch matters." PI.'s Reply 9 (emphasis added). 5 Morley tries to circumventthis problem by arguing that "NARA normally requires the requester to do the search and imposes exorbitant copying charges." PI.'s Reply 8. But, Morley's using FOIA to sidestep these copying costs and to compel the CIA to search these records did not exactly further the public benefit. See Chesapeake BayFound., Inc. v. Dep'tof Agric., 108 F.3d 375, 377 (D.C. Cir. 1997) ("[T]hatthe Foundation did not have to pay for postage underthe [court's order] is hardly a significantpublic benefit. Nor is the establishment ofa legal right to information a public benefit
...."). Indeed, priorto filing this case, "thepublic had the benefit ofaccess to all
or most ofthis information
...." TaxAnalysts, 965 F.2d at 1094 (internal citation and quotation omitted). Accordingly, considering that Morley has already himselfbenefitted by avoiding the copying costs, this Court does not view a further award ofattorney's fees
as appropriate in this case.

5 Morley cites to several, non-binding cases related to FOIA fee-waivers for the proposition thatprior disclosure does not necessarily preclude documents' providing a public benefit. PI.'s Reply 10-11. Those cases, however, involved disclosures to other FOIA requesters, see Carney v. 

## us. Dep'tof Justice, 19 F.3d 807,815 (2d Cir. 1994); Schrecker v. Dep 't of Justice, 970 F. Supp. 49, 51 (D.D.C. 1997), and publications in agency's reading rooms, see Friends of the CoastForkv. 

## Us. Dep'tof Interior, 110 F.3d 53,55 (9th Cir. 1997); Fitzgibbon v. AgencyforInt'!Dev., 724 F. Supp. 1048, 1051 (D.D.C. 1989). Those limited disclosures are materially distinguishable from the situation here where documents were transferred to a designatedplace for public review-NARA. See President John F. Kennedy Assassination Records Collection Act of 1992, Pub. L. No.102-526, 

### §4, 106 Stat. 3443-58 ("All assassination records transmitted to the National Archives for disclosure to the public shall be included in the Collection and shall be available to the public for inspection and copying atthe National Archives
....").

8Even ifthe majority ofdocuments Morley received had notbeenpreviously public, Morley's claims about the supposedpublic benefit ofthe documents produced in this litigation are unconvincing as based on nothing more than his own conclusory opinions and factually inaccurate statements. Forinstance, Morley claims that his "suit prompted the CIA to acknowledge for the first time that Joannides was acting in an official and deceptive capacity" in his role with the House ofRepresentatives Select Committee on Assassinations. PI.'s Reply 6 (quoting Morley Deci.**~** 4(b), July 19, 2010). But, the CIA hadpreviously acknowledged this fact when it released records underthe JFK Act. Nelson Decl.**~~** 16, 59-60. Morley also argues thathis lawsuit forced the CIA to disclose that Joannides received a "medal for his work in 1963 and 1978," PI.'s Reply 7; PI.'s Resp. 5-6; Morley Deci.**~** 4(c), July 19,2010. But, Morley overstates this medal's importance to his case as in fact this was a "CareerIntelligence Medal" awarded for Joannides's 28 years ofservice from 1950 to 1978. Morley Decl., Oct. 24, 2010, Attach. 2 [Dkt. # 119-1].6 Finally, Morley makes one more argument, which actually undermines his claim that this case has conferred a public benefit. Morley claims that this Court should award attorney's fees based on documents withheldby the CIA. See PI.'sReply 7 ("[T]he lawsuit has made it clearthatthe CIA retains a significant body ofJFK assassination-related records that it has notreviewed

6 Morley makes a similarly unfounded claim thatJoannides's traveling to New Orleans twice during the same periodthat Warren Commission investigators were conducting interviews in New Orleans is "unquestionably new information ofinterestto scholars ofthe assassination and to the general public." PI.'s Resp. 4 (quoting Morley Decl.**~** 2, Oct. 24, 2010 [Dkt. # 119-1]).

9and released as mandated by the JFK Records Act."); PI.'sResp. 4-5. Butthose documents wereproperly withheld under FOIA, seeMorleyIL 699 F. Supp. 2d at 252- 59, and therefore, his argument must fail. Even so, the CIA has statedthat most ofthese records are completely unrelated to the Kennedy assassination. See Nelson Decl.**~** 55.7 Accordingly, the public benefit factor weighs strongly in the CIA's favor. 

### 2. Plaintifrs Commercial Benefit and the Nature ofPlaintifrs Interest The second and third factors, the plaintiffs commercial benefit and the nature of plaintiffs interest, "are closely related and often consideredtogether." TaxAnalysts, 965 F.2d at 1095. As our Circuit Court instructed inDavyv. CIA, 550 F.3d. 1155 (D.C. Cir. 2008), these factors are intendedto assess whether aplaintiffhas "sufficientprivate incentive to seek disclosure" recognizing that "manyFOIAplaintiffs do not have the financial resources or economic incentives to pursue their requests through expensive litigation." Id. at 1158, 1160 (internal citations and quotations omitted). But, "when a litigant seeks disclosure for a commercial benefit or out ofpersonal motives, an award of attorney's fees is generally inappropriate." TaxAnalysts, 965 F.2d at 1095. (internal citations and quotations omitted).

7 Morley, nevertheless, maintains that these records are related to the Kennedy assassination and should have been released under the JFK Act. In his Response to the Defendant's Surreply, Morley, referencing the 295 documents withheld by the CIA under FOIA, states: "accordingto Judge John Tunheim, they meetthe legal criteria ofJFKassassination-relatedrecords." Pl.'s Resp. 5 (emphasis added). Morley apparently bases this statement on a quote in a newspaper article, from Judge Tunheim, the former chairman ofthe Assassination Records Review Board, in which Judge Tunheim states: "This material should be released." See Scott Shane, C.I.A. Is Still CageyAbout Oswald Mystery, N.Y. Times, Oct. 17,2009. This Court finds Morley's argument to be not only unpersuasive, but also misguided.
10Morley asserts that these factors favor a fee award because (1) any commercial benefit he received should not disquality him from an award because he "belongs to the category ofrequesters favored to receive both fee waivers and attorney's fees" and (2) his interest "fits in the scholarly-journalistic category." Pl.'s Mem. 13-17. Morley admits that he received "minimal" compensation for writing news articles about this matterbut has "no bookcontract." Morley Decl.**~** 6, July 19,2010. But, Morley claims thathe is "interested in historical truth." Id.**~** 7. Although Morley is correct, to the extentthat these points by themselves would not preclude him from receiving attorney's fees, it certainly cannot be saidthat Morley's whole purpose was "to increase the public fund of knowledge about a matter ofpublic concern." Davy, 550 F.3d at 1162. Rather, as the CIA correctlypoints out, Morley had an interest in obtainingthe NARArecords "fromthe CIA at little or no charge under FOIA"to avoid expending his
own time and money to obtain the documents from NARA. Opp'n 16; cfPl.'s Reply 8 ("NARAnormally requires the requesterto do the search and imposes exorbitant copying charges."). I find, therefore, that these two factors indicate that Morley has a sufficient private interest in pursuingthese records without attorney's fees. See 550 F.3d at 1160. 3. Reasonableness ofCIA's Original Withholding Because the CIA has advanced reasonable legal positions, this Court concludes that the fourth factor also weighs against an award ofattorney's fees. The final factor considers whether the government had areasonable or colorable basis for withholding documents and whetherthe government was recalcitrant or obdurate in opposing a valid claim. Id. at 1162. Although none ofthe factors is solely dispositive, the "failureto

11satisfy the fourth element
... may foreclose a claim for attorney's fees or costs." Mayadakv. 

## us. Dep 't of Justice, 579 F. Supp. 2d 105, 108-09 (D.D.C. 2008) (internal citations and quotations omitted). Morley contends that the CIA engaged in "dilatorytactics" in its initial response to Morley's FOIA request and then continued with "delayingtactics" by asserting its Glomar response and litigating whether its operational records were exempt from FOIA. Pl.'s Mem. 16-17; Pl.'s Reply 15-18. I disagree. The CIA has not only relied on reasonable legal interpretations but also acted reasonably throughout this case. First, in response to Morley's FOIA request letter seeking materials to "shednew light onthe assassination ofPresident Kennedy," Morley Letter 3, the CIA directed Morley to the logical repository ofsuch records-NARA. Second, the CIA was certainly reasonable in its assertion ofa Glomarresponse concerning Joannides's participation in covert operations: afterthe CIA expanded its explanation for making the Glomar response at our Circuit Court's instruction, this Court found that explanation adequate. Morley II, 699 F. Supp. 2d at 257-58. Further, the CIA had areasonable legal basis for initially contesting Morley's request to search its operational files. Although our Circuit eventually ruled against the CIA onthis point, the court noted that the CIArelied on the "only opinion by a circuit court ofappeals" to address the relevant FOIA exemption under the CIA Act, 50 U.S.C. §431. Morley, 508 F.3d at 1118. Finally, there is no indication in the record thatthe CIA has engaged in any recalcitrant or obdurate behavior. CfDavy, 550 F.3d at 1163 (holding that fourth factor weighed against agency where agency took more than one yearto process documents and

12provided no legal basis in response to a second FOIA request). In sum, this factor also weighs strongly in favor ofthe CIA.CONCLUSION For all these reasons, the Court concludes that the plaintiffis not entitledto attorney's fees. & Thus, plaintiffsmotion must, and will be, DENIED. An appropriate Orderwill issue with this Memorandum herewith.

-J

& BecauseMorley is not entitledto fees, there is no need for this Courtto assess whetherMorley's attorney's fee request is reasonable.

13