Freedom of Information Act

Oral argument: March 1, 2011

Appealed from: United States Court of Appeals for the Second Circuit (Apr. 6, 2010)

FREEDOM OF INFORMATION ACT, FALSE CLAIMS ACT, QUI TAM

Daniel Kirk, a Vietnam War veteran, filed a qui tam suit against Schindler Elevator Corporation ("Schindler"), alleging that Schindler violated the False Claims Act ("FCA") through its failure to comply with The Vietnam Era Veterans Readjustments Assistance Act ("VEVRAA"). Section 3730(e)(4) of the FCA expressly states that federal courts do not have jurisdiction over claims based upon “public disclosure of . . . administrative . . . report[s] . . . or investigation[s].” Kirk's FCA claim utilized information requested from the Department of Labor under the Freedom of Information Act ("FOIA"). The United States District Court for the Southern District of New York dismissed the case, holding that information obtained through a FOIA request constitutes a “report” or “investigation” under the FCA, but the United States Court of Appeals for the Second Circuit reversed. In doing so, the Second Circuit rejected the Third Circuit’s method of focusing upon the dictionary definitions of “report” and “investigation” and instead adopted the Ninth Circuit’s method of considering the “nature of the [FOIA] document itself.” Schindler appealed, claiming that FOIA responses, by virtue of being produced by federal agencies, are "reports” or “investigations" and therefore fit the FCA public disclosure bar. The Supreme Court granted certiorari to resolve a circuit split on whether a federal agency's FOIA disclosure is a "report" or "investigation" under Section 3730(e)(4).

Oral argument: Dec. 1, 2010

Appealed from: United States Court of Appeals for the Ninth Circuit (Aug. 5, 2009)

FREEDOM OF INFORMATION ACT, HIGH 2 EXEMPTION, AGENCIES

Glen Milner filed a request with the Department of the Navy under the Freedom of Information Act, 5 U.S.C. § 552, to gain access to files describing the blast radius of Navy-managed munitions stored on Indian Island in Washington state. The Navy refused, claiming the requested documents were exempt from disclosure under Exemption 2 of the Freedom of Information Act, which exempts records that are "related solely to the internal personnel rules and practices of an agency." Some courts have interpreted Exemption 2 to cover two types of information: (i) "Low 2" information, which consists of relatively trivial internal matters and (ii) "High 2" information, which is considered more substantial and the disclosure of which would "risk circumvention of a legal requirement." The United States Court of Appeals for the Ninth Circuit held that the requested information was exempt from disclosure under the High 2 interpretation of Exemption 2. Milner argues that the High 2 Exemption is not supported by the plain text of the statute or its legislative history, and that the Navy must disclose the information. In contrast, the Navy argues that High 2 correctly expresses Congress's intentions in creating Exemption 2. This decision will determine the scope of agency disclosure in response to the public requests for information pursuant to the Freedom of Information Act.

Oral argument: April 16, 2008

Appealed from: U.S. Court of Appeals for the District of Columbia Circuit (June 22, 2007)