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Rudenberg v. Chief Deputy Attorney General of Department of Justice

Superior Court of Delaware

December 8, 2017

JONATHAN RUDENBERG, Petitioner Below, Appellant,
v.
THE CHIEF DEPUTY ATTORNEY GENERAL OF THE DEPARTMENT OF JUSTICE AND THE DELAWARE DEPARTMENT OF SAFETY AND HOMELAND SECURITY, DIVISION OF STATE POLICE, Respondents Below, Appellees.

          Submitted: September 8, 2017

         On Appellant's Motion for Attorney Fees and Costs.

          Ryan Tack-Hooper, Esquire and Richard H. Morse, Esquire, American Civil Liberties Union Foundation of Delaware, Inc., Wilmington, Delaware, Attorneys for Appellant Jonathan Rudenberg.

          Joseph C. Handlon, Esquire, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware, Attorney for Appellee the Chief Deputy Attorney General of the Delaware Department of Justice.

          Patricia A. Davis, Esquire and Rae M. Mims, Esquire, Deputy Attorneys General, Delaware Department of Justice, Dover, Delaware, Attorneys for Appellee Delaware Department of Safety and Homeland Security, Division of State Police.

          MEMORANDUM OPINION

          RICHARD R. COOCH, R. JUDGE.

         I. INTRODUCTION

         Before this Court is a motion for attorney fees and costs by Jonathan Rudenberg ("Appellant") stemming from his 2015 Delaware Freedom of Information Act ("FOIA") request to the Delaware Department of Safety and Homeland Security, Division of State Police ("DSP"). Appellant sought numerous documents related to the use of cell site simulator devices, known as "Stingrays, " from DSP.[1] DSP did not produce the documents, relying on a nondisclosure agreement between DSP and the Federal Bureau of Investigation ("FBI"). Appellant appealed the non-production to the Chief Deputy Attorney General ("CDAG") to determine if a FOIA violation had occurred. The CD AG did not expressly find either that a FOIA violation had, or had not occurred, but rather found that the FBI nondisclosure agreement was a public record. She ordered DSP to provide Appellant with a copy of the agreement along with redacted purchase orders.

         Appellant then appealed the CDAG's decision to this Court. Following briefing and oral argument on the substantive appeal, Appellant ultimately agreed to withdraw his appeal in exchange for DSP's previous production of "additional explanations of the nature of the search conducted as to each category of the request, as well as additional responsive documents including an additional non-disclosure agreement and three applications for court orders and resulting court orders."[2]

         Appellant now seeks recovery of attorney fees and costs pursuant to Delaware's FOIA statute at 29 Del. C. § 10005(d) because, he argues, he is a "successful plaintiff." 29 Del. C. § 10005(d) provides that "[t]he court may award attorney fees and costs to a successful plaintiff of any action brought under this section." (Emphasis added).

         The issue raised in this case is whether a plaintiff in an appeal on the record in an administrative appeal of a decision by the CD AG pursuant to 29 Del. C. § 10005(e), who during the pendency of the appeal has prevailed on a de minimis portion of his original FOIA request, is a "successful plaintiff and ought to be awarded attorney fees and costs, pursuant to the Court's discretion, under 29 Del. C. § 10005(d).[3]

         As a threshold matter, this Court finds that Appellant, although achieving a de minimis portion of success, is not truly a "successful plaintiff under the statute. Moreover, an award of attorney fees and costs under § 10005(d) is a matter of discretion of this Court. As such, this Court, in the exercise of its discretion, finds that the award of attorney fees and costs in this case is not warranted.

         Appellant is only seeking fees and costs against DSP and not against the CD AG unless "the Chief Deputy is implicated by the State Police or the Court as having responsibility for some portion of the fees and costs."[4]

         II. PROCEDURAL HISTORY AND FACTS

         On May 15, 2015, Appellant, apparently then a "Delaware small business owner and security researcher, "[5] made a Delaware FOIA request to the Delaware State Police ("DSP").[6] Appellant sought nine categories of documents.[7] Appellant's specific request reads in toto:

A) Records regarding the State Police's acquisition of cell site simulators, including invoices, purchase orders, contracts, loan agreements, solicitation letters, correspondence with companies providing the devices, and similar documents. In response to this request, please include records of all contracts, agreements and communications with Harris Corporation.
B)Records regarding any arrangements or agreements between the State Police and other law enforcement agencies in Delaware to share the use of cell site simulators, or any offers by the State Police to share the use of cell site simulators with other law enforcement agencies in Delaware.
C)All requests by the Harris Corporation or any other corporation or any state or federal agencies, to the State Police to keep confidential any aspect of the State Police's possession and use of cell site simulators, including any nondisclosure agreements between the State Police and the Harris Corporation and any other corporation, or any state or federal agencies, regarding State Police's possession and use of cell site simulators.
D)Policies and guidelines of the State Police governing use of cell site simulators, including restrictions on when, where, how and against whom they may be used, limitations on retention and use of collected data, guidance on when a warrant or other legal process must be obtained, and rules governing when the existence and use of cell site simulators may be revealed to the public, criminal defendants, or judges.
E)Any communications or agreement between the State Police and wireless service providers (including AT&T, T-Mobile, Verizon, Sprint Nextel, and U.S. Cellular) concerning use of site simulators.
F)Any communications, licenses, or agreements between the State Police and the Federal Communications Commission or the Delaware Public Service Commission concerning use of cell site simulators.
G) Records reflecting the number of investigations in which cell site simulators were used by the State Police or in which cell site simulators owned by the State Police were used and the number of those investigations that have resulted in prosecutions.
H) Records reflecting a list of all cases, with docket numbers if available, in which cell site simulators were used as part of the underlying investigation 3 by the State Police or in which cell site simulators owned by the State Police were used as part of the underlying investigation.
I) All applications submitted to state or federal courts for search warrants or orders authorizing use of cell site simulators by the State Police in criminal investigations or authorizing use of cell site simulators owned by the State Police in criminal investigations, as well as any warrants or orders, denials of warrants or orders and returns of warrants associated with those applications. If any responsive records are sealed, please provide documents sufficient to identify the court, date and docket number for each sealed document.[8]

         On June 5, 2015, DSP denied Appellant's FOIA request in reliance upon a nondisclosure agreement with the FBI.[9] Appellant appealed this denial to the CDAG pursuant to 29 Del. C. § 10005(e) on June 17, 2015.[10] On, December 29, 2015, the CDAG issued a decision "order[ing] [DSP] to produce the Federal Bureau of Investigation nondisclosure agreement and acknowledging] [DSP's] agreement to produce certain redacted purchase orders, but [] not compelling] the production of any other responsive records."[11] Appellant appealed the CDAG's decision to this Court.[12]

         On September 28, 2016, Counsel in the Civil Division, Federal Programs Branch of the United States Department of Justice filed a "Statement of Interest of the United States" pursuant to 28 U.S.C. § 517.[13] The Statement of Interest essentially aligned the United States Department of Justice with DSP by asserting its interest in keeping the information requested by Appellant confidential.[14] On December 30, 2016, this Court issued an opinion addressing "to what extent [the Court] should consider the Statement of Interest, including its new facts, in connection with the underlying appeal which is required to be '"on the record.'"[15]This Court held that new facts raised by the Statement of Interest could not be considered as a FOIA appeal is "on the record."[16]

         This Court heard oral argument on the substantive appeal on February 27, 2016.[17] At that time, the Court directed the parties to meet and confer to narrow and refine the numerous issues raised in the substantive appeal.[18] However, on May 4, 2017, the parties submitted to the Court an Agreement and Order, which set out certain narrow stipulations and agreements of the parties, and where Appellant agreed to dismiss his appeal.[19] The Agreement and Order provides:

WHEREAS, on May 15, 2015, Jonathan Rudenberg ("Appellant") submitted a Freedom of Information Act request, pursuant to 29 Del. C. § 10003, to the Delaware Department of Safety and Homeland Security, Division of State Police ("State Police" or "Appellee");
WHEREAS, on June 5, 2015, the State Police denied the FOIA request in its entirety, citing a nondisclosure agreement they had entered with the Federal Bureau of Investigation;
WHEREAS, on June 17, 2015, Appellant filed a petition challenging the denial with the Chief Deputy Attorney General ("CDAG" or "Appellee") pursuant to 29 Del. C. § 10005(e) as described in 29 Del. C. § 10005(b);
WHEREAS, on December 29, 2015, the CDAG ordered the State Police to produce the Federal Bureau of Investigation nondisclosure agreement and acknowledged the State Police's agreement to produce certain redacted purchase orders, but did not compel the production of any other responsive records;
WHEREAS, on February 26, 2016, Appellant filed a Notice of Appeal from the decision of the CDAG, alleging, among other things, that Appellant was entitled to an explanation of the nature of the search conducted as to each category of the request, additional production of responsive records, and a declaration concerning the procedure that must be followed in proceeding before the CDAG;
WHEREAS, since filing the Notice of Appeal, the State Police have provided additional explanations of the nature of the search conducted as to each category of the request, as well as additional responsive documents including an additional nondisclosure agreement and three applications for court orders and resulting court orders. The State Police have not provided the model names of the cell site simulators purchased as Appellant requested; the number of investigations in which cell site simulators were used, the number of those investigations that resulted in prosecution as Appellant requested; a list of all cases in which cell site simulators were used as part of the underlying investigation as Appellant requested; or all applications submitted to State or Federal Courts for search warrants or orders, denials of warrants or orders, or returns of warrants returned with all applications authorizing the use of cell site simulators as Appellant requested;
WHEREAS, these additional explanations and production have resolved many of the disputes between the parties;
WHEREAS, the principal remaining dispute concerns the process due to a petitioner who appeals to the CDAG;
WHEREAS, the parties recognize that the process due to a petitioner who appeals to the CDAG depends, in part, on the availability of de novo suit in the Superior Court that is separate from any appeal from the decision of the CDAG;
WHEREAS, the parties, without conceding any infirmity in the claims or defenses, have in good faith negotiated the terms of this Stipulation and Order in order to resolve this remaining issue to their mutual satisfaction;

         NOW, THEREFORE, AND SUBJECT TO APPROVAL OF THE COURT, IT IS HEREBY STIPULATED AND AGREED by and between the parties, as follows:

A. Agreement as to FOIA Procedure. The Parties agree: that the 2010 amendments to Delaware FOIA created a screening procedure that must be completed by a FOIA petitioner seeking records from an agency represented by the Attorney General of Delaware; however, this procedure and the potential appeal from it do not displace a petitioner's right to file "suit" under 29 Del. C. § 10005(b); a petitioner seeking records from an agency represented by the Attorney General may file the same type of suit under § 10005(b) that they were able to file before the FOIA amendments and that they continue to be able to file with respect to agencies not represented by the Attorney General; as described in the relevant statutory sections, the petitioner or public agency "may" choose to appeal the CD AG's decision and rely on the record created before the CDAG, but "[t]he citizen shall have the absolute right" to file a separate lawsuit after complying with the statutory requirements of §§ 10005(b) & (e); in sum, there is an optional "appeal" of the CDAG's decision described in §§ 10005(b) & (e) that is limited to the record and is distinct from the "suit" described in §§ 10005(b) & (e) that remains available to all FOIA petitioners. The Court expresses no view as to the parties' "agreement" in this paragraph.
B. Attorney Fees and Costs. Appellant shall file any motion for attorney's fees and costs within 45 days of the Effective Date. By entering into this Agreement and Order, Appellees do not concede that Appellant is a prevailing or successful party or is otherwise entitled to fees and costs in any amount and they therefore reserve the right to raise any and all defenses to a claim for fees and costs.
C. Dismissal. Following this Court's decision on any motion for attorney's fees and costs, the above-captioned lawsuit shall then be dismissed.
D. Release. Except as otherwise indicated in this Agreement and Order (including in particular Part B "Attorney Fees and Costs" supra), Appellant hereby unconditionally releases and forever discharges the Appellees and their officers, agents, employees, former employees, attorneys, and vendors from any and all claims, demands, actions, causes of action, and suits, at law, in equity or otherwise, attorneys' fees, costs, obligations, damages, and liabilities of every kind, nature and description whatsoever asserted in the above-captioned action, whether individual or derivative, state or federal, which Appellant, has, had or which it hereinafter can, shall or may have for, upon or by reason of facts, conditions and events described in the pleadings in this action. Notwithstanding the foregoing, Appellant does not release his legal right to seek any and all public records in the future with new FOIA petitions.
E. No admission of wrongdoing. Appellees' stipulation to this Agreement and Order does not constitute and shall not be construed or interpreted as an admission of any wrongdoing or liability by any party.[20]

         Appellant moved to recover attorney fees and costs on June 21, 2017 within 45 days pursuant to section B of the Agreement and Order.[21]

         III. THE PARTIES' CONTENTIONS

         A. Appellant's Contentions

         First, Appellant seeks to recover attorney fees and costs pursuant to 29 Del. C. § 10005(d).[22] Appellant contends that, because this "court may award attorney fees and costs to a successful plaintiff of any action brought under" § 10005(d), he is entitled to fees because he was "successful."[23] Appellant argues that he is a "successful plaintiff because "[p]rior to the litigation, [Appellees] refused to produce responsive documents[.]"[24] However, "[o]nce suit was filed . .. [t]he Court, after hearing oral argument on the merits, ordered the parties to attempt to meet and confer to resolve issues and to produce stipulations outlining any remaining issues."[25] Appellant contends that it was at that point that "[DSP] agree[d] to a further search for responsive records (finding and producing one) as well as to produce the key documents (court applications and orders)."[26]

         Appellant also contends that "[b]ecause these documents answered [Appellant's] most important questions ... and because [DSP] had finally explained the nature of their searches . . . [Appellant] agreed to resolve the litigation over the records upon receipt of these additional documents."[27] Appellant's argument is that he was "'successful' because he obtained the foregoing as a result of pursuing this action."[28] Appellant contends that "the parties' voluntary resolution of the matter [should not] impact the fees claim."[29] What Appellant essentially argues is that "[t]he measure of whether a party is successful turns on whether the litigation brought about positive results and changes in legal position among the parties[.]"[30]

         Second, Appellant initially argued that "[b]ecause the denial of public records to [Appellant] was the result of errors made by both [DSP] and the CD AG, the judgment of fees should apply jointly to both [Appellees]."[31] However, in a July 12, 2017 letter to the Court, Appellant withdrew his claim against the CDAG.[32] DSP in this administrative appeal has been the only real adversary to Appellant.

         Finally, Appellant contends that a reasonable award of fees should be determined by the "lodestar" amount.[33] Appellant asserts that the number of hours at the Appellant's attorneys' rates results in a lodestar amount $60, 737.50.[34]Appellant seeks an award of $60, 737.50 in attorney fees, in addition to costs of $420.88.[35]

         B. DSP's Contentions[36]

         Appellee ("DSP") argues that Appellant ought not to be awarded any attorney fees and costs 29 Del. C. § 10005(d) because the language of the statute only supports an attorney fees and costs award to "a party [who] is 'successful' [in a] lawsuit."[37] DSP points out that Appellant here was unsuccessful in an administrative appeal, not a lawsuit, and should therefore not recover fees under 29 Del. C. § 10005(d).[38] DSP argues that the "successful plaintiff language of 29 Del. C. ยง 10005(d) "does not support an award ...


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