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David M. Baker v. United States Department of Homeland Security (U.S. Secret Service

November 19, 2012


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is Plaintiff David M. Baker's Motion for Attorney's Fees Pursuant to 5 U.S.C. § 552(a)(4)(E). (Doc. 30.) Baker, an employee of the United States Secret Service, brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq., seeking to compel his employer to comply with his FOIA request. Because Baker is both eligible and entitled to recover attorney's fees, his motion will be granted.


Plaintiff David M. Baker filed his Complaint in this Court on March 29, 2011. The purpose of his Complaint was to compel the United States Department of Homeland Security to comply with his April 8, 2009 Freedom of Information Act ("FOIA") request made pursuant to 5 U.S.C. § 552. Baker is an employee of the United States Secret Service, and his FOIA request sought to unearth, in pertinent part, "[f]ull and complete copies of any and all documents/records/files whatsoever relating to [his] current, ongoing dispute with the United States Secret Service regarding [his] service in the Reserve Component of the United States Navy . . . ." (Pl.'s Ex. A, Doc. 21-1).

The Secret Service's Freedom of Information and Privacy Acts ("FOI/PA") Office received Baker's request on April 24, 2009 and returned acknowledgment of the request in an April 29, 2009 letter. The FOI/PA Office for the Secret Service conducted a search of their online computer system, which is comprised of five separate databases. This search uncovered only two files pertaining to Baker, and both were deemed unresponsive to the scope of his request. On April 24, 2009, per Baker's FOIA request, the FOI/PA Office also forwarded search requests to: (1) the Office of Human Resources and Training, Office of the Assistant Director; (2) the Personnel Division; and (3) the Office of Chief Counsel. The Personnel Division forwarded responsive documents to the FOI/PA Office on April 27, 2009, and the Office of Chief Counsel did likewise on May 18, 2009.

In his declaration, Craig W. Ulmer, the FOI/PA Officer for the Secret Service, avers that while the Office of Human Resources could not locate any responsive records, the other two aforementioned offices forwarded the documents they determined as responsive to the FOI/PA Office for review. (Ulmer Decl. at ¶¶ 15-17, Doc. 12.) Later, on March 10--11, 2010, the FOI/PA Office sent further requests to the Philadelphia Field Office and the Scranton Resident Office. (Id. at ¶ 18.) The Philadelphia Office uncovered no responsive records. (Id. at ¶ 19.) The Scranton Office initially failed to respond, and a subsequent request made in October of 2011 prompted that Office to forward its responsive records to the FOI/PA Office. (Id. at ¶ 20.) Lastly, in October 2011, the FOI/PA contacted Human Resources Specialist Beverly Steadman of the Special Agent and Uniformed Division Support Branch as it was determined that she had spoken with Baker about the subject of his request. (Id. at ¶ 21.) However, this uncovered no additional responsive documents. (Id.)

On February 11, 2010, Baker wrote to Ulmer, inquiring as to the status of his request and reminding the FOI/PA Office that their delay was in violation of the time frame prescribed by law. (Pl.'s Ex. C, Doc. 21-1 at 3.) Ulmer responded on February 16, 2010, informing Baker that his file was being reviewed for release. (Pl.'s Ex. D, Doc. 21-1 at 4.) Ulmer wrote Baker again on March 12, 2010, referencing a conversation Baker had with a member of Ulmer's staff, noting that Baker's FOIA request had "generated a voluminous amount of records," and presenting Baker with the option of partial releases or "one complete response package." (Pl.'s Ex. E, Doc. 21-1 at 5.) Baker wrote back on March 18, 2010, requesting clarification of the status of his request, specifically as to the delay in the initial determination letter. (Pl.'s Ex. F, Doc. 21-1 at 6.) Receiving no response, Baker reiterated his concerns about his request to William H. Holzerland, the Associate Director for Disclosure Policy & FOIA Program Development, in a May 18, 2010 email. (Pl.'s Ex. G, Doc. 21-1 at 8.) After a few exchanges, Holzerland wrote on July 7, 2010 that the final touches were being made to Baker's report and that "there appear[ed] to be light at the end of the tunnel." (Pl.'s Ex. I, Doc. 21-1 at 10.)

On April 21, 2011-over three weeks from the filing of the instant suit and almost two years from the filing of his initial request-the FOI/PA Office made its first disclosure in response to Baker's FOIA request. (Def.'s Ex. C, Doc. 12.) On November 4, 2011, the FOI/PA Office made a subsequent disclosure of five documents that had been previously withheld in full or in part,*fn1 and also disclosed all seven additional pages in full that were determined responsive from the Scranton Office. (Ulmer Decl. at ¶¶ 26-28, Doc. 12.) In total, after reviewing all documents flagged as responsive pursuant to the Freedom of Information and Privacy Acts, the FOI/PA Office ultimately compiled a total of 1,935 pages of responsive documents. (Id. at ¶ 30, Doc. 12.) Of these, 1,804 were produced in full, 30 were produced in part, and 101 were withheld in full. (Id.) The 101 withheld pages were retained under the Privacy Act's exemption as to "information compiled in reasonable anticipation of a civil action or proceeding," 5 U.S.C. § 552a(d)(5), as well as the FOIA exemption for attorney work product, 5 U.S.C. § 552(b)(5). (Id. at ¶ 31.) Of the thirty redacted pages, twenty-three were redacted solely as to exemption (b)(5) (attorney work product), four solely under exemptions (b)(6) and (b)(7)(C) (unwarranted invasions of personal privacy), one under (b)(2) (internal agency practices), and two under exemptions (b)(2), (b)(6) and (b)(7)(C). (Id. at ¶ 32.)

On November 7, 2011, the Secret Service, representing that their complete FOIA disclosure to Baker rendered the action moot, motioned to dismiss, or in the alterative, for summary judgment, against his claims. (Def.'s Mot., Doc. 8.) In its Memorandum dated January 24, 2012, this Court ruled that although Baker's claim, to the extent that it sought to compel the Secret Service to respond to the FOIA request, was rendered moot by the document production, the Secret Service was required to submit an appropriately detailed Vaughn index*fn2 pertaining to the withheld materials within sixty days. (Doc. 23 at 6--7.)

On May 5, 2012, Baker filed his Motion for Attorney's Fees Pursuant to 5 U.S.C. § 552(a)(4)(E). The motion has now been fully briefed and is ripe for review.


I. Legal Standard

FOIA is a statute "enacted to facilitate public access to Government documents." Dep't of State v. Ray, 502 U.S. 164, 173 (1991). A federal agency that receives a FOIA request must determine within twenty working days whether to release the requested documents. 5 U.S.C. § 552(a)(6)(A)(I). Although an agency may seek a brief extension of this deadline, 5 U.S.C. § 552(a)(6)(B), it may only continue to withhold relevant records if they fall within one or more of the statute's nine exemptions. 5 U.S.C. § 552(b)(1)--(9).

Under FOIA, the court may assess "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. ยง 552(a)(4)(E)(I). In deciding whether an award of attorney's fees is appropriate, the court must undertake a two-step inquiry. The first step is determining whether the plaintiff is "eligible" for attorney's fees, i.e., whether the plaintiff has "substantially prevailed" on his FOIA claim. Calypso Cargo Ltd. v. U.S. Coast Guard, 850 F.Supp.2d 1, 3 (D.D.C. 2011) (citing Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011)). A plaintiff "substantially prevails" if he "has obtained relief through either . . . a judicial order, or an ...

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