Los Angeles Lawyer Who Was Plaintiff in Seeking Unredacted Documents Is Denied Recompense for Moneys Spent on Legal Representation; Opinion Cites Reasonableness of FBI’s Initial Partial Denial of FOIA Request
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed an order denying attorney fees to a Los Angeles lawyer who successfully challenged the FBI’s refusal to provide an Oct. 30, 2016 search warrant and related documents in its investigation into Hillary Clinton’s email practices while secretary of state from 2009-13.
She allegedly discussed classified documents using her personal email account—which emerged as an issue in the 2016 presidential campaign in which she was the Democratic nominee.
Seeking the fees is E. Randol Schoenberg, best known for his litigation efforts to recover artworks looted by the Nazis under Hitler’s regime.
District Court Action
Schoenberg brought an action in the U.S. District Court for the Central District of California in 2018 to obtain unredacted copies of a warrant and related materials that had previously been supplied to him, but with redactions. Blotted out was the name of the person served with a warrant for the search of his laptop computer, former U.S. Rep. Anthony Weiner, D-New York.
“Plaintiff has requested the unredacted Search Warrant for use in a news story,” the complaint says. “The prompt release of the unredacted Search Warrant is important because of the enormous public interest in this information.”
Partially in response to Schoenberg’s suit under the Freedom of Information Act (“FOIA”)—but principally because the Plaintiff Office of the Inspector General wanted to include some of the materials in a report—the FBI requested that the District Court for the Southern District of New York (“SDNY”) unseal much of the information it had previously declared confidential, which was granted.
Schoenberg consequently received some materials that were not included in the government report, and District Court Judge John A. Kronstadt of the Central District of California found that he “substantially prevailed” in his FOIA suit. However, on May 8, 2020, he denied an award of attorney fees.
The plaintiff had sought an award of $10,185 in favor of his lawyers, Jodi Newberry and Paul Murphy of the Santa Monica firm of Murphy Rosen. Kronstadt explained:
“There was a reasonable basis to withhold the Unredacted Information in response to Plaintiffs FOIA request. The Government relied on a court sealing order and two FOIA exemptions. Although these decisions may have been imperfect ones, they remain reasonable in light of the facts and circumstances presented at the time the FBI made them.” He added:
“The limited public benefit in disclosure and nature of Plaintiffs interest both support an award of attorney s fees, but the reasonable basis for withholding does not. Faced with difficult issues of law and fact related to an issue of public disclosure regarding a presidential election, the FBI’s factual and legal bases for withholding the Redacted Information were reasonable. Based on an assessment of all of the factors and the circumstances presented here, it is determined that Plaintiff is not entitled to an award of attorney’s fees and costs.” In his brief in the Ninth Circuit seeking reversal, filed by attorneys Murphy and Newberry, Schoenberg argued:
“The public benefit in this case was very significant, as there was widespread national interest in the search warrant materials. In December 2016, when the redacted version of the search warrant materials was first released, as a result of Schoenberg’s efforts, several major publication news outlets reported on the released materials….
“Several of the news reports noted that the significant redaction of the materials made it difficult to draw conclusions about whether there had been sufficient probable cause to support the search.”
The brief asserts:
“It should never be necessary for a FOIA requester to battle the FBI over obvious and clearly established legal principles. And it is beyond galling to have to read a District Court opinion saying the FBI’s position was ‘reasonable.’ It wasn’t.”
E. RANDOL SCHOENBERG
Ninth Circuit Opinion
The Ninth Circuit affirmed. A three-judge panel said, in an opinion by Judge Ryan D. Nelson, that Kronstadt did not abuse his discretion in balancing the factors and concluding that the reasonableness of the initial redacting predominated, precluding a fee award. “Whether obligated or acting out of comity for another branch of government, the FBI was reasonable to think the SDNY sealing order limited its ability to disclose information to Schoenberg,” Nelson said, adding that “because the FBI’s reliance on the SDNY sealing order was reasonable,” Kronstadt’s “same conclusion was reasonable too.”
Nelson said in a footnote: “Schoenberg also argues the district court contradicted itself. We disagree. The district court described the unredacted information as ‘significant to the public,’ but later said that the public benefit was ‘limited.’ These statements are not inherently contradictory.”
Schoenberg, who is of counsel to the law firm of Burris & Schoenberg, LLP, told the METNEWS yesterday:
“In November 2016 I set find out what probable cause the FBI had for the last-minute search warrant against Hillary Clinton, which found nothing incriminating. It turned out they had none.
“Although my efforts took years and were largely successful, I was denied even a modest attorney’s fee award, which is disappointing.”
He added: “But the larger point remains, that FBI director James Comey authorized a search warrant without probable cause against Hillary Clinton on the eve of the election, and likely decidedly tilted the scales in favor of Donald Trump.”
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