Watchdog groups may still win fees after TVA released 166 records

Watchdog groups that have to sue for public records may still be able to recover their legal bills, even when an agency waits until litigation starts to turn over the documents. The Sixth Circuit said the Tennessee Valley Authority’s release of 166 records during a Freedom of Information Act, or FOIA, case did not erase the possibility of attorneys’ fees for the Energy and Policy Institute.

That matters because fee awards are one of the few tools that can make public-records litigation worth the expense. If agencies can hold onto documents until they are sued and still avoid fees, the cost of forcing disclosure falls almost entirely on the requester.

Why the release still counts

The district court had denied fees on the theory that TVA had not voluntarily or unilaterally changed position. The appeals court rejected that view, saying TVA’s decision to release the records was still TVA’s own choice and that the mid-litigation shift was attributable to the agency.

The panel also pointed to the fact that TVA had twice previously withheld the records, first in its initial response and then on internal appeal. In the court’s view, the later disclosure did not make the earlier fight disappear; it just raised the question of whether the lawsuit pushed TVA to change course.

The fee question still open

The ruling does not award fees. It sends the case back for the district court to decide whether the lawsuit caused the release, whether the claim was not insubstantial, and whether the equitable factors support a fee award.

That leaves the practical stakes intact for requesters and agencies alike. If fees remain available in cases like this, public-interest groups have a stronger way to press for disclosure, and agencies have less reason to sit on records until they are hauled into court.