Susan B. Long, and Philip H. Long v. United States Internal Revenue Service, Bureau of Economic Analysis, and United States Department of Commerce

In this appeal, we must examine the three considerations that govern the award of fees and costs to a plaintiff in an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 : the plaintiff’s eligibility for such an award, his entitlement to such an award, and the reasonableness of the amount he requests. Because we conclude that the district court failed to distinguish the standards applicable to these separate considerations and misapplied the law, we must reverse its fee and cost determination and remand for clarification and recalculation.

I

In 1975, Susan and Philip Long (“Longs”) filed an action against the Internal Revenue Service (“IRS”) under the FOIA, seeking disclosure of source documents pertaining to the IRS’s Taxpayer Compliance Measurement Program (“TCMP”). The district court, concluding that computer tapes are not “records” within the meaning of the Act and that the sought-after tapes were exempt from disclosure in any event, granted summary judgment for the IRS, but on appeal this court reversed and remanded for further proceedings. Long v. United States Internal Revenue Serv., 596 F.2d 362 (9th Cir.1979) [hereinafter Long I], cert. denied, 446 U.S.…