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Morley v. Central Intelligence Agency

United States Court of Appeals, District of Columbia Circuit

January 21, 2016

JEFFERSON MORLEY, APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY, APPELLEE

Argued October 6, 2015.

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 filed by Senior Circuit Judge WILLIAMS.

OPINION

Page 842

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, 384 U.S.App.D.C. 49 (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

Page 843

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 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 ...


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