UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANIMAL PARTISAN,

Plaintiff, Civil Action No. 23 - 1990 (SLS) v. Judge Sparkle L. Sooknanan FEDERAL BUREAU OF INVESTIGATION,

Defendant.

MEMORANDUM OPINION

Animal Partisan, a nonprofit organization, brought this lawsuit under the Freedom of

Information Act (FOIA),

, to compel the Federal Bureau of Investigation (FBI) to

release certain records regarding its involvement in two conferences. The FBI has since produced

the requested records. What remains is a motion from Animal Partisan requesting $93,823.09 in

attorneys’ fees and costs. For the reasons below, the Court denies the motion.

BACKGROUND

A. Statutory Background

“Congress enacted FOIA in 1966 to grant a right of public access to governmental

information ‘long shielded unnecessarily from public view[.]’” Martin v. Dep’t of Justice,

(D.C. Cir. 2007) (citing EPA v. Mink,

(1973), superseded by statute,

Freedom of Information Act, Pub. L. No. 93–502, § 2(a),

(1973)). FOIA requires

that “records and material in the possession of federal agencies be made available on demand to

any member of the general public.” NLRB v. Robbins Tire & Rubber Co.,

(1978); see also

. It allows the public to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” ACLU v. U.S. Dep’t of Justice,

(D.C. Cir. 2011) (quoting Dep’t of the Air Force v. Rose,

(1976) (internal

quotation marks omitted)). Even though the Act was “broadly conceived,” EPA,

, it

includes nine “carefully structured . . . exemptions,” NLRB, 437 U.S. at 220–21. These exemptions

demonstrate that the public’s right to information is “‘not absolute’ and that disclosure of certain

information ‘may harm legitimate governmental or private interests.’” Martin,

(quoting Summers v. DOJ,

(D.C. Cir. 1998)). One such exemption,

Exemption 7(A), applies to certain “records or information compiled for law enforcement

purposes” if “the production of such law enforcement records or information . . . could reasonably

be expected to interfere with enforcement proceedings.”

(b)(7)(A). FOIA permits

courts to award “reasonable attorney fees and other litigation costs reasonably incurred” in FOIA

litigation “in which the complainant has substantially prevailed.”

(a)(4)(E)(i).

B. Factual and Procedural Background

Animal Partisan “is an animal rights organization dedicated to alleviating the suffering of

animals used in agriculture and research through legal action.” Compl. ¶ 5, ECF No. 1. “Part of

this work includes monitoring the activities and operations of law enforcement agencies, like [the]

Defendant, and how those law enforcement agencies conduct investigations related to animal

rights activists.” Pl.’s Mot. at 7, ECF No. 17. And obtaining records through FOIA is critical to

the organization’s work. See Declaration of William Craig Lowrey (Lowrey Decl.) ¶ 5, ECF No.

17-3. On October 27, 2022, Animal Partisan submitted a FOIA request for “numerous types of

records including records showing the FBI’s involvement in two conferences, [North American

Meat Institute] NAMI’s 2020, and 2022 Animal Care and Handling Conferences[.]” Compl. ¶ 9.

2 On November 2, 2022, the FBI indicated that it was closing the request because it was

unable to locate responsive records. Lowrey Decl. ¶ 12. The FBI advised that “it would conduct

an additional search if [Animal Partisan] could provide more information related to the subject of

the request.”

Animal Partisan then renewed its FOIA request and provided additional

information.

. On November 15, 2022, the FBI issued its final determination:

The material you requested is located in an investigative file which is exempt from disclosure pursuant to

(b)(7)(A).

(b)(7)(A) exempts from disclosure:

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings . . .

The records responsive to your request are law enforcement records; there is a pending or prospective law enforcement proceeding relevant to these responsive records, and release of the information could reasonably be expected to interfere with enforcement proceedings. Therefore, your request is being administratively closed.

Lowrey Decl. ¶ 14.

On December 1, 2022, Animal Partisan appealed the FBI’s final determination to the

Department of Justice’s Office of Information Policy (OIP).

. The appeal “challenged the

FBI’s failure to segregate portions of the records to which FOIA Exemption 7(A) did not apply,

as well as the FBI’s failure to balance its own privacy concerns with the public interest in

disclosure.” Id.; see also FOIA Appeal at 3, ECF No. 1-11. Animal Partisan also “argued the

requested records were already made public through the FBI’s presentation at the Meat Institute’s

conferences, so the records were not subject to exemption.” Id.; see also FOIA Appeal at 5. On

January 20, 2023, OIP affirmed the FBI’s determination and closed the appeal. See Declaration of

Michael G. Seidel (Seidel Decl.) ¶ 12, ECF No. 18-1. “OIP determined that the FBI properly

withheld information in full because of its protection from disclosure under the FOIA pursuant to

3

(b)(7)(A) and that it was reasonably foreseeable that disclosure of the information

would harm the interests protected by this provision.”

Animal Partisan filed its Complaint on July 11, 2023, and the FBI filed its Answer on

August 18, 2023. See Compl.; Answer, ECF No. 5. A month later, the FBI began “conferring with

the record custodians to re-confirm the possible application of specific exemptions.” Jt. Status Rep.

(Sept. 15, 2023), ECF No. 7. On October 13, 2023, the FBI heard from its field office in Dallas

“that there was no longer any harm related to investigatory actions associated with the FOIA

release of information.” Seidel Decl. ¶ 13. According to the FBI, “the investigative activity,

necessitating the application of [Exemption (7)(A)], ceased on February 2, 2023[,] when

prosecution was declined[,] and the internal investigation was closed.” That did not change the

fact that Exemption (7)(A) “was applicable at the time of the initial FOIA request and all following

communications, including the administrative appeal to OIP, through the closure of the

administrative case.”

¶ 13 n.5.

With the exemption no longer applicable, the FBI made “its ‘first and final’ record release”

on January 31, 2024. Lowrey Decl. ¶ 21 (quoting Jt. Status Rep. (Feb. 12, 2024), ECF No. 9).

Animal Partisan was “not satisfied with the adequacy of the FBI’s search” and sent a letter

identifying responsive records not yet released, including a “slideshow from the FBI’s presentation

at the Meat Institute’s 2020 Animal Care and Handling Conference.”

. On June 28, 2024,

the FBI released additional responsive records, including the slideshow.

.

After the FBI released the final records, the Parties attempted to settle attorneys’ fees and

costs. Lowrey Decl. ¶ 25. But those negotiations failed, prompting the instant motion for

$93,823.09 in attorneys’ fees and costs. See Pl.’s Mot. at 38. The motion is fully briefed and ripe

for resolution. See Def.’s Opp’n, ECF No. 18; Pl.’s Reply, ECF No. 19.

4 LEGAL STANDARD

Courts may award “reasonable attorney fees and other litigation costs reasonably incurred”

in FOIA litigation.

(4)(E)(i). A FOIA plaintiff must demonstrate both “eligibility”

and “entitlement” to fees and costs. Brayton v. Off. of the U.S. Trade Representative,

(D.C. Cir. 2011). Eligibility is a “threshold inquiry.” McKinley v. Fed. Hous. Financy

Agency,

(D.D.C. 2012). To establish eligibility, a plaintiff must

demonstrate that it “substantially prevailed” in the litigation.

(a)(4)(E). This requires

a showing that the plaintiff obtained relief through a “judicial order, or an enforceable written

agreement or consent decree,” or by obtaining a “voluntary or unilateral change in position by the

agency, if the complainant’s claim is not insubstantial.”

(a)(4)(E)(ii)(I)–(II). The

second prong of the statute requiring a voluntary or unilateral change in the agency’s position is

referred to as the “catalyst theory.” Grand Canyon Tr. v. Bernhardt,

, 95 (D.C. Cir.

2020) (citation omitted). “If . . . the court proceeds to the entitlement prong[,] . . . [it] considers a

variety of factors to determine whether the plaintiff should receive fees.” Brayton,

(emphasis in original). To obtain attorneys’ fees under FOIA, a plaintiff must satisfy both prongs

of the test. See McKinley, 739 F.3d at 710.

DISCUSSION

Without a court-ordered disclosure, Animal Partisan relies on the catalyst theory to

establish its eligibility for attorneys’ fees and costs. Animal Partisan argues that it “received the

records at issue, but only after [it] filed its Complaint and compelled the agency to release the

records.” Pl.’s Mot. at 6. The FBI counters that “due to events external to this case, there was no

longer any investigation-related harm that would result from the release of the information.” Def.’s

Opp’n at 8. Although Animal Partisan has established its eligibility for attorneys’ fees and costs

under the statute, the Court finds that it has not demonstrated that it is entitled to such fees.

5 A. Eligibility

The “key question” under the catalyst theory is “whether ‘the institution and prosecution

of the litigation cause[d] the agency to release the documents obtained during the pendency of the

litigation[.]’” Calypso Cargo Ltd. v. U.S. Coast Guard,

(D.D.C. 2011)

(cleaned up). Whether a plaintiff has sparked this type of change is “largely a question of

causation.” Mobley v. Dep’t of Homeland Sec.,

, 46–47 (D.D.C. 2012) (cleaned

up). “While the temporal relation between an FOIA action and the release of documents may be

taken into account in determining the existence vel non of a causal nexus, timing, in itself or in

conjunction with any other particular factor, does not establish causation as a matter of law.” Pub.

Law Educ. Inst. v. U.S. Dep’t of Justice,

, 184 n. 5 (D.C. Cir. 1984). Instead, when

“disclosure is triggered by events unrelated to the pending lawsuit, the causal nexus is missing,

and the requester cannot be deemed a ‘prevailing party[.]’” Citizens for Resp. & Ethics in

Washington v. Dep’t of Justice,

(D.D.C. 2015) (noting that this “prevent[s]

[the] plaintiffs from being the beneficiaries of purely extrinsic factors”).

Animal Partisan argues that its lawsuit was the catalyst to the agency producing documents.

Pl.’s Mot. at 17. The agency instead points to events unrelated to the lawsuit that triggered

disclosure—i.e., the declination of the relevant prosecution that removed the investigation-related

harm that would result from release of the information. See

at 17–18. At first blush, the agency’s

argument seems reasonable. If, in fact, the relevant prosecution was declined after the filing of the

lawsuit, it would explain the agency’s change in position regarding disclosure. But the record does

not bear this out.

The agency’s investigative activity “ceased on February 2, 2023,” before commencement

of this lawsuit, “when prosecution was declined[] and the internal investigation was closed.” See

6 Seidel Dec. ¶ 13 n. 5. For five months, the agency took no steps to revisit its application of

Exemption 7(A). Animal Partisan then filed its Complaint on July 11, 2023. See Compl. A month

later, the FBI filed its Answer on August 22, 2023. The Court then ordered the Parties to meet and

confer, and the FBI reached out to the relevant custodians to consider whether the exemption was

still valid. See Jt. Status Rep. at 1 (Sept. 15, 2023), ECF No. 7 (The “Federal Bureau of

Investigation . . . is currently conferring with the record custodians to re-confirm the possible

application of specific exemptions.”). And on October 12, 2023, the agency learned from the

Dallas Field Office “that there was no longer any harm related to investigatory actions associated

with the FOIA release of information.” Seidel Decl. ¶ 13. The FBI then released documents on

January 23, 2024. Id. ¶ 14. On this record, the Court finds that the Plaintiff’s lawsuit “substantially

caused the requested records to be released,” because it was “reasonably necessary” to prompt the

FBI to reconsider the application of Exemption 7(A). Burka v. U.S. Dep’t of Health and Human

Serv’s.,

(D.C. Cir. 1998); see also Citizens for Responsibility & Ethics in

Washington (CREW) v. U.S. Dep’t. of Justice,

(D.C. Cir. 2014) (explaining

that “reliance on Exemption 7(A) may become outdated when the proceeding at issue comes to a

close”) (citing Coastal States Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980)).

The agency’s sole response is that the Plaintiff should have submitted a new FOIA request,

which “would have resulted in the same determination, without the need for litigation.” Seidel

Decl. ¶ 28; see also id. ¶ 29. But “the mere fact that a FOIA requester might have ultimately

received the documents in question in the absence of litigation is not a sufficient basis for a finding

that it has not substantially prevailed[.]” Fund for Constitutional Gov’t. v. Nat’l Archives & Record

Serv.,

(D.C. Cir. 1981). And the agency itself directed the Plaintiff to file a

lawsuit “if [it was] dissatisfied with [the] action on [its administrative] appeal.” OIP Determination

7 at 1, ECF No. 1-12. Animal Partisan simply followed that instruction. Because its lawsuit caused

release of the documents, Animal Partisan is eligible for attorneys’ fees and costs under FOIA.

B. Entitlement

If a Court finds that a plaintiff is eligible for fees, it must consider four factors to determine

whether it is entitled to fees: “(1) the public benefit derived from the case, (2) the commercial

benefit to the requester, (3) the nature of the requester’s interest in the information, and (4) the

reasonableness of the agency’s conduct.” Morley v. CIA,

(D.C. Cir. 2013).

“Although these factors must be balanced, failure to satisfy the fourth element may foreclose a

claim for attorney fees.” Summers v. U.S. Dep’t of Justice,

(D.D.C. 2007)

(citing Chesapeake Bay Found., Inc. v Dep’t of Agric.,

, 216–17 (D.C. Cir. 1993)).

The “sifting of those criteria over the facts of a case is a matter of district court discretion.” Tax

Analysts v. U.S. Dep’t of Justice,

(D.C. Cir. 1992). Weighing the four factors,

the Court finds that Animal Partisan is not entitled to attorneys’ fees and costs.

1. Public Benefit

In assessing the public benefit factor, a court must consider “both the effect of the litigation

for which fees are requested and the potential public value of the information sought.” Davy v.

CIA,

(D.C. Cir. 2008). The “effect of the litigation inquiry” asks “simply

whether the litigation caused the release of requested documents, without which the requester

cannot be said to have substantially prevailed.” Morley v. CIA,

(D.C. Cir. 2016).

And to have “potential public value” the request “must have at least a modest probability of

generating useful new information about a matter of public concern.”

The public benefit favors

the plaintiff “where the complainant’s victory is likely to add to the fund of information that

citizens may use in making vital political choices.” Fenster v. Brown,

(D.C. Cir.

8 1979) (cleaned up). This is an ex ante inquiry. See Morley,

(“Lest there be any

uncertainty . . . 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[.]”).

Having already decided that the litigation caused the release of the requested documents,

see supra, at 6–7, the Court will consider the potential public value of the records obtained. Animal

Partisan sought records related to the FBI’s involvement in two conferences held by the North

American Meat Institute, “a trade association that represents companies that process 95 percent of

beef, pork, veal and 70 percent of turkey products in the United States.” Compl. ¶¶ 2–3. Curiously,

both Parties focus on the ex post benefits (or lack thereof) of the records obtained, see Pl.s’ Mot.

at 25–27; Def’s Opp’n at 13–15, even though the inquiry is ex ante, see Hall & Assocs. v. EPA,

, 78 (D.D.C. 2023) (The ex-ante “inquiry turns on the facts as they existed—

and as they were known to the FOIA requester and other members of the public—at the time the

FOIA requester faced the decision of whether to bring suit.”).

Based on the record before the Court, the information obtained appears only marginally

“likely to add to the fund of information that citizens may use in making vital political choices.”

Fenster,

. Although “[m]embers of the public remain highly interested in animal

welfare within the animal agriculture and research industries, as well as the policing of animal

rights activism,” Lowrey Decl. ¶ 6, many of the records sought were likely already in the public

domain because the conferences were external, see Tax Analysts,

(noting that

public benefit is “less than overwhelming” where “the public had the benefit of access to all or

most of this information”). And the records sought do not seem to concern any FBI activity

9 regarding the investigation and prosecution of animal rights activists. See Compl. ¶ 9. On balance,

the public benefit factor only slightly favors Animal Partisan.

2. Commercial Benefit & Interest in the Information

The second factor considers whether the FOIA plaintiff derived a public benefit from

obtaining the records, while the third factor looks at the nature of the plaintiff’s interest in the

records. These factors “are closely related and often considered together.” Nat’l Sec. Archive v.

U.S. Dep’t of Def.,

(D.D.C. 2008). “Under the second criterion a court

would usually allow recovery of fees where the complainant was indigent or a nonprofit public

interest group . . . but would not if it was a large corporate interest.” Fenster,

n. 4

(quoting S. Rep. No. 93–854, at 19). Under the third factor, “a court would generally award fees

if the complainant’s interest in the information sought was scholarly or journalistic or

public-interest oriented.” Fenster,

n. 4 (quoting S. Rep. No. 93–854, at 19).

Animal Partisan is a nonpartisan public interest group that sought these records “to monitor

[the FBI’s] participation in conferences and inform the public of its ongoing activities and

operations related to investigating and overcharging animal rights activists as ‘domestic

terrorists.’” Pl.’s Mot. at 28. As part of these efforts, it publicized the obtained records via blog

posts on its website and on social media posts. See Lowrey Decl. ¶ 27. And these records have

been cited in articles published by other media organizations domestically and abroad. See

¶¶ 28–29. Thus, the second and third factors favor Animal Partisan.

3. Reasonableness of the Agency’s Conduct

Finally, a court must determine whether the government had a reasonable basis for

withholding the information. In making this determination, a court must consider (1) whether the

agency’s opposition to disclosure had a reasonable or colorable basis in law, and (2) whether the

10 agency was recalcitrant in its opposition or obdurate in its behavior. Elect. Priv. Info. Ctr. v. United

States Dep’t of Homeland Sec.,

(D.D.C. 2016). “Under either factor, the

agency carries the burden of showing it behaved reasonably.” Id.; see also Judicial Watch, Inc. v.

Dep’t of Justice,

(D.D.C. 2012). “The question is not whether [the

plaintiff] has affirmatively shown that the agency was unreasonable, but rather whether the agency

has shown that it had any colorable or reasonable basis for not disclosing the material until after

[the plaintiff] filed suit.” EPIC, 218 F. Supp. 3d at 45–46 (quoting Davy,

).

Starting with the reasonableness of the agency’s opposition to disclosure, the FBI argues

that it reasonably withheld the relevant records under Exemption 7(A). See Def.’s Opp’n at 16. It

points out that the exemption “was applicable at the time of the initial FOIA request and all

following communications, including the administrative appeal to OIP, through the closure of the

administrative case.” Seidel Decl. ¶ 13 n.5. The Court agrees. See CREW,

(“[A]n

ongoing criminal investigation typically triggers Exemption 7(A).”); see also Mullen v. U.S. Army

Crim. Investigation Command, No. 1:10-cv-262,

, at *10 (E.D. Va. July 6, 2012)

(“[T]he existence of an ongoing investigation” is a reasonable basis in law to withhold documents,

especially if the “Defendant demonstrated responsiveness to the FOIA request once the

investigation . . . concluded.”).

Animal Partisan counters that the agency improperly applied Exemption 7(A) because it

“failed to explain how responsive records would interfere with enforcement proceedings and,

instead, only provided the text of the statutory language and its own legal conclusions.” Pl.’s Mot.

at 30. But the FBI’s failure to provide these particulars does not render its decision unreasonable.

See, e.g., United America Financial, Inc. v. Potter,

(D.D.C. 2011)

(finding the government’s reliance on a FOIA exemption reasonable even though “it ultimately

11 failed to make the required specific and particularized showing that disclosing the identities of

these employees would result in harm or harassment” because “[t]he claim was [still] based on

sound legal theory”). Animal Partisan also claims that the FBI “failed to segregate and release

responsive non-exempt records.” Pl.’s Mot. at 31 (citing to Elec. Priv. Info. Ctr. v. U.S. Dept. of

Homeland Sec.,

(D.D.C. 2012)). But since the Parties “never engaged in any

substantive motions practice,” Am. Oversight v. U.S. Dep’t of Justice,

(D.D.C. 2019), the Court cannot assess the strength of this contention, see, e.g., Los Padres

ForestWatch v. U.S. Forest Serv., No. 22-cv-3702,

, at *10 (D.D.C. Mar. 18,

2025).1 Ultimately, on this record, the agency’s reliance on Exemption 7(A) appears reasonable.

See LaSalle Extension Univ. v. Fed. Trade Comm’n,

(D.C. Cir. 1980) (noting

that to “rebut a claim of Government unreasonableness or obduracy, the Government need not

prove that the information was in fact exempt, only that the Government had a reasonable basis in

law for concluding that the information in issue was exempt”).

Turning to the second factor, the FBI was neither recalcitrant in its opposition nor obdurate

in its behavior. Indeed, as the Plaintiff concedes, once this lawsuit was commenced, the FBI

promptly turned over the requested records. See Lowrey Decl. ¶¶ 21–24. And when the Plaintiff

raised adequacy concerns about the agency’s initial search, the FBI swiftly agreed to a

supplemental search and produced the additional information. Id. ¶ 23. “[T]his is not a case in

which the government stubbornly refused to accede to a valid claim.” Peter S. Herrick’s Customs

1 Animal Partisan cites Elec. Priv. Info. Ctr. v. U.S. Dept. of Homeland Sec.,

(D.D.C. 2012), to support its segregability argument. There, the court found that the government did not have a colorable basis in law for withholding the requested documents because its only explanation for producing the documents after the plaintiff filed suit was that it had “conduct[ed] another round of review.”

That is a far cry from this case where the government had a reasonable basis to withhold the requested information under Exemption 7(A) until the underlying investigation came to an end.

12 & Int’l Trade Newsl. v. Customs & Border Prot., No. 04-cv-0377,

, at *10

(D.D.C. Oct. 26, 2006). And there is no evidence of bad faith. See Los Padres ForestWatch,

, at *10 (“Agencies should not be penalized or disincentivized from voluntarily and

promptly revisiting the adequacy of their efforts after litigation has commenced, at least where

there is no evidence of bad faith or indifference.”). In the end, the FBI turned over the responsive

records within three months of hearing from its field office about the relevant prosecution and

determining the exemption no longer applied. Compare with Potter,

(finding “no evidence of obdurate behavior” though “litigation stretched on for a period of almost

four years” (internal quotation marks omitted)).

Because the FBI had a reasonable basis for withholding the relevant records and did not

engage in obdurate behavior, the fourth factor cuts in its favor.

* **

When deciding entitlement to fees and costs, no one factor is dispositive. See Davy,

. Here, the first, second, and third factors weigh in favor of an award of fees and costs,

and the fourth weighs against one. Considering these competing factors, the Court finds that

Animal Partisan is not entitled to attorneys’ fees and costs. Although three of the four factors favor

Animal Partisan, the first factor only slightly favors the organization. And the fourth factor heavily

favors the agency, as it had a reasonable basis for initially withholding the relevant records under

Exemption 7(A) and acted swiftly to turn over the records once it learned that the underlying law

enforcement investigation had ceased. See supra, at 11–14. In these circumstances, the Court finds

that an award of fees and costs is not “necessary to implement FOIA” and that the cost of litigating

a case like this one would not “dissuade” a FOIA applicant “who ha[s] been denied information

from invoking [its] right to judicial review.” Davy,

(quoting Nationwide Bldg.

13 Maint., Inc. v. Sampson,

(D.C. Cir. 1977)); see, e.g., Morley, 894 F.3d at 396

(finding no entitlement to fees where “factor four heavily favor[ed] the agency and the other three

factors only slightly favor[ed]” the plaintiff); Assassination Archives and Research Center, Inc. v.

CIA, No. 17-cv-160,

, at *7 (D.D.C. Apr. 4, 2019) (finding the plaintiff was not

entitled to attorneys’ fees where the “first three factors may weigh in [the plaintiff’s] favor,

but . . . the fourth factor weighs strongly in the [defendant’s] favor”).2

CONCLUSION

For the foregoing reasons, the Court denies the Plaintiff’s Motion for attorneys’ fees and

costs, ECF No. 17.

A separate order will issue.

SPARKLE L. SOOKNANAN United States District Judge

Date: June 30, 2025

2 Although the Court need not consider whether it should exercise its discretion to award reasonable attorneys’ fees and costs, it is dubious of the reasonableness of Animal Partisan’s fees and costs. Animal Partisan seeks $93,823.09 for a relatively straightforward FOIA case, and almost one-third of that amount represents “fees-on-fees,” i.e., attorneys’ fees to litigate this very motion.

14