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September 25, 1980

Dana BIBERMAN et al., Plaintiffs,

The opinion of the court was delivered by: LASKER

This Freedom of Information Act ("FOIA") case is a companion action to Clark v. United States, 481 F. Supp. 1086, in which these and other plaintiffs seek damages and injunctive relief for alleged break-ins and burglaries of their homes and offices, harassment, wiretaps, mail openings and other forms of illegal surveillance conducted by federal officials and agencies. Dissatisfied with the discovery furnished in Clark, plaintiffs brought this action to compel the Federal Bureau of Investigation ("FBI") to turn over files it maintains on plaintiffs.

Plaintiffs now move pursuant to 5 U.S.C. § 552(a)(4)(E) for an interim award of attorneys fees in the total amount of $ 13,875.

 Section 552(a)(4)(E) provides:

"The court may assess against the United States reasonable attorneys fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed."

 Plaintiffs argue that they have "substantially prevailed" within the meaning of the statute because, they claim, by bringing this lawsuit they have caused the government to produce over 4,000 pages of documents not previously produced on demand under 5 U.S.C. § 552 et seq. Plaintiffs concede that "litigation of the instant action is still at its early stages" and that "the instant motion will undoubtedly be only the first of a number of similar motions." (Affirmation of Susan V. Tipograph, PP 3, 9, sworn to December 26, 1979). The government contends that the motion is premature. It also argues that plaintiffs cannot be said to have prevailed since they have failed to demonstrate that they have secured documents in this case which would not have been furnished to them under the normal discovery procedures available in the Clark case. Finally, the government asserts that plaintiffs have failed to establish that any documents were wrongfully withheld under 5 U.S.C. §§ 552 et seq. and that such a showing is required to warrant imposition of attorneys fees.


 The initial question is whether § 552(a)(4)(E) authorizes the courts to order the payment of "interim" attorneys fees. Plaintiffs have not brought to the attention (and our research has not revealed) any cases under the statute in which such an interim award has been made. Although the government cites two unreported cases in which the court declined to grant such an award, those decisions do not address the question of the court's authority, but merely deny the applications. Exner v. Federal Bureau of Investigation, No. 76-1903 (9th Cir. November 15, 1978); Bissell v. Federal Bureau of Investigation, No. CV-78-3521-MML (C.D.Cal. June 21, 1979). Nor does the legislative history of this provision, which fails to mention the possibility of an interim award, either favorably or unfavorably, offer much guidance on whether Congress intended to grant such authority. E. g., H.R.Rep. No. 93-1380, 93d Cong., 2d Sess. (1974) (Conference Report); S.Rep. No. 93-854, 93d Cong., 2d Sess. (1974); H.R.Rep. No. 93-876, 93d Cong., 2d Sess., reprinted in (1974) U.S.Code Cong. & Admin.News 6267; H.R.Rep. No. 92-1419, 92d Cong., 2d Sess. (1972).

 Nevertheless, as indicated below, Congress' statements of the policy intended to be advanced by the attorneys fee provision support the conclusion that an interim award may be made in appropriate circumstances. As the government concedes, *fn1" the purpose of § 552(a)(4)(E) was to remove the obstacle presented by litigation costs in bringing a FOIA action and to encourage private persons to press their suits, thereby advancing the goal of open government. For example, in a report on the administration of FOIA relating to the 1974 enactment of the attorney's fee provision, the Committee on Government Operations listed as one of the major problem areas:

"The cumbersome and costly legal remedy under the act when persons denied information by an agency choose to invoke the injunctive procedures to obtain access; although the private person has prevailed over the Government bureaucracy a majority of the important cases under the act that have gone to the Federal courts, the time it takes, the investment of many thousands of dollars in attorney fees and court costs, and the advantages to the Government in such cases makes litigation under the act less than feasible in many situations;"

 H.R.Rep. No. 92-1419, 92d Cong., 2d Sess. 8 (1972) (emphasis added); see id. at 73. As the Senate committee reporting on the amendments stated,

"(The attorneys fee) provision was seen by many witnesses as crucial to effectuating the original congressional intent that judicial review be available to reverse agency refusals to adhere strictly to the Act's mandates. Too often the barriers presented by court costs and attorneys' fees are insumountable (sic) for the average person requesting information, allowing the government to escape compliance with the law. . . .
"Congress has established in the FOIA a national policy of disclosure of government information, and the committee finds it appropriate and desirable, in order to effectuate that policy, to provide for the assessment of attorneys' fees against the government where the plaintiff prevails in FOIA litigation. Further, as observed by Senator Thurmond:
We must insure that the average citizen can take advantage of the law to the same extent as the giant corporations with large legal staffs. Often the average citizen has foregone the legal remedies supplied by the Act because he has had neither the financial nor legal resources to ...

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