Department of Justice Guide to the Freedom of Information Act
The Freedom of Information Act is one of more than a hundred different federal statutes
that contain a "fee-shifting" provision permitting the trial court to award reasonable attorney
fees and litigation costs to a plaintiff who has "substantially prevailed."1 The FOIA's attorney
fees provision requires courts to engage in a two-step substantive inquiry. The court must
determine first if the plaintiff is eligible for an award of fees and/or costs and it must then
determine if the plaintiff is entitled to the award.2 Even if a plaintiff meets both of these tests,
the award of fees and costs is entirely within the discretion of the court.3
The FOIA's attorney fees provision limits an award to fees and costs incurred in
litigating a case brought pursuant to the FOIA;4 accordingly, fees and other costs are generally
1 5 U.S.C. § 552(a)(4)(E)(i) (2006), amended by OPEN Government Act of 2007, Pub. L. No.
110-175, 121 Stat. 2524.
2 See, e.g., Tax Analysts v. DOJ, 965 F.2d 1092, 1093 (D.C. Cir. 1992); Church of Scientology
v. USPS, 700 F.2d 486, 489 (9th Cir. 1983); see also Wheeler v. IRS, 37 F. Supp. 2d 407, 411 n.1
(W.D. Pa. 1998) ("The test for whether the court should award a FOIA plaintiff litigation costs
is the same as the test for whether attorney fees should be awarded.").
3 See, e.g., Lissner v. U.S. Customs Serv., 56 F. App'x 330, 331 (9th Cir. 2002) (stating that
review of attorney fee award is for abuse of discretion); Anderson v. HHS, 80 F.3d 1500, 1504
(10th Cir. 1996) ("Assessment of attorney's fees in an FOIA case is discretionary with the
district court."); Detroit Free Press, Inc. v. DOJ, 73 F.3d 93, 98 (6th Cir. 1996) ("We review the
court's determination [to grant fees] for an abuse of discretion."); Young v. Dir., No. 92-2561,
1993 WL 305970, at *2 (4th Cir. 1993) (noting that court has discretion to deny fees even if
eligibility threshold is met); Maynard v.