Klamath Water Users Protective Ass'n v. United States Department of Interior

ORDER

After having substantially prevailed in its Freedom of Information Act (FOIA) action against the Department of the Interior (Interior), Klamath Water Users Protective Association (Association) applied for an award of attorneys’ fees under the Act. See 5 U.S.G. § 552(a)(4)(E). The making of an award is discretionary and principally turns on four factors: (1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of plaintiffs interest in the records; and (4) the reasonableness of the agency’s withholding. See Church of Scientology of Cal. v. United States Postal Serv., 700 F.2d 486 , 492-93 (9th Cir.1983); Tax Analysts v. United States Dep’t of Justice, 965 F.2d 1092, 1093-94 (D.C.Cir. 1992). We apply these factors to the facts of this case.

1. The Public Benefit

The Association argues that the requested documents are necessary to keep the public properly informed about government decisions made on water allocation, clearly an issue of public concern. In Church of Scientology of California, 700 F.2d at 493, we recognized that “[a] ruling which establishes that the government may not withhold certain information pursuant to a…

dissenting.

I respectfully dissent.

I would, if we reached the question, reach the opposite result, applying the factors in Church of Scientology of California v. United States Postal Service. 1 But we may not reach the question, under controlling circuit authority. We held in Lissner v. United States Customs Service, 2 that “Mo receive attorneys fees, [the applicant] must show that he is eligible for and entitled to receive them,” and that “[determinations of eligibility and entitlement are largely dependent on the facts, and are therefore left to the discretion of the district court.” 3 Under Lissner, the district court, not the court of appeals, exercises the discretion, and we review only for abuse. We should remand the attorneys’ fees application so the district court may consider it first.

. 700 F.2d 486 , 491-92 (9th Cir.1983).

. 241 F.3d 1220 (9th Cir.2001).

. Id. at 1224 .