Photo of Mana Elihu Lombardo

The Freedom of Information Act (“FOIA”), 5 U.S.C. §552, is intended to uphold the principles of transparency and open government, so that citizens can assess government accountability and actions. Since its enactment in 1966, FOIA has also been used by companies to obtain information about their competitors’ prices and contract performance, as well as by watchdog organizations, qui tam plaintiffs and others who have used the fruits of FOIA requests to support their litigation goals. Kirk Schindler, the relator in a qui tam suit recently heard by the United States Supreme Court, is an example of someone who worked for a company, suspected that the company violated certain laws, and before proceeding with allegations against his employer, used FOIA as a tool to obtain documentation to support his case. As discussed in C&M’s recently published article in the BNA Federal Contracts Report, the use of a response to a FOIA request to support qui tam allegations may bar one’s ability to maintain the suit.

The article discusses the U.S. Supreme Court’s decision holding that a federal agency’s written response to a FOIA request for records constitutes a “report” within the meaning of the public disclosure bar in the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. (See Schindler Elevator Corp. v. United States ex rel Kirk). The article provides background on the role of the public disclosure bar under the False Claims Act, describes the facts and procedural posture of the Schindler case, recounts various Circuit Court’s previous decisions with regard to FOIA requests and the public disclosure bar, analyzes the future of the public disclosure bar as a defense to the FCA, and discusses the practical effect of the new law for procurement contractors.

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