When can a court award attorney fees against an agency in a FOIA lawsuit?

The Freedom of Information Act allows a court to award reasonable attorney fees and litigation costs to a requester who sues an agency and wins. This fee-shifting provision is meant to remove the financial barrier that might otherwise discourage people from enforcing their right of access. An award is never automatic, however. Courts apply a two-step framework: the requester must first be eligible for fees, and then the court decides whether the requester is entitled to them.

Step One: Eligibility

A requester is eligible only if they “substantially prevailed” in the lawsuit. There are two ways to meet this standard:

• A court order. The requester obtains a judicial order or an enforceable judgment or consent decree that requires the agency to release records.
• The catalyst theory. The requester causes a voluntary or unilateral change in the agency’s position, and the lawsuit was not insubstantial in producing that result. In practice, this means the suit itself prompted the agency to turn over records it had withheld.

Simply filing a request, or even filing a lawsuit that the agency moots by releasing records for unrelated reasons, may not be enough on its own.

Step Two: Entitlement

Eligibility does not guarantee an award. Even after a requester substantially prevails, the court uses its discretion to weigh several factors, commonly including:

• The public benefit derived from the release of the information.
• The commercial benefit to the requester and the nature of the requester’s interest in the records.
• Whether the agency had a reasonable legal basis for withholding the records, or instead acted unreasonably or in bad faith.

When records serve broad public understanding rather than a private or commercial interest, and when the agency’s withholding lacked a sound legal footing, a court is more likely to award fees.

Why It Matters for Records Programs

Fee-shifting is a practical reason agencies handle requests carefully and document their decisions. Sound recordkeeping, timely searches, and defensible exemption claims reduce the risk that a court will find the agency’s position unreasonable. State open-records laws often contain their own fee provisions, so the specific standards vary by jurisdiction.

For more on access rights and agency obligations, see the FOIA and public records hub.