Freedom of Information Act

Issues

The Freedom of Information Act (“FOIA”) generally allows access to, and disclosure of, federal information and records to those who requested them, subject to some exceptions, including one for a disclosure that would constitute an invasion of “personal privacy.” Following a recent investigation of Respondent AT&T Inc. (“AT&T”) by Petitioner the Federal Communications Commission (“FCC”), Respondent CompTel, a non-profit trade association, requested under FOIA all of the records and information pertaining to the FCC’s investigation. In allowing disclosure of some of the information, the FCC rejected AT&T’s argument that such disclosure would constitute an invasion of “personal privacy,” holding that this exception was strictly limited to individuals. AT&T appealed to the Third Circuit, which held that a corporation may have “personal privacy” interests and remanded to the FCC. AT&T argues that the term “personal privacy” applies to corporations as well as individuals, and the FCC argues that such a term is limited to individuals. The Supreme Court’s  decision in this case  will determine the amount of protection given to corporations under FOIA and will likely affect the amount of access the public has to certain private corporate information.

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This case asks the Supreme Court to resolve conflicting interpretations of Exemption 4 of the Freedom of Information Act (“FOIA”). Food Marketing Institute contends that the plain meaning interpretation of Exemption 4 applies the exemption to confidential information, regardless of the competitive harm that will be caused if disclosed. And, if the Court selectively applies Exemption 4 to confidential information that will cause substantive competitive harm if disclosed, Food Marking Institute argues, then a reasonable possibility of competitive harm should satisfy the substantive harm standard. In response, Argus Leader Media asserts that Food Marketing Institute lacks the standing to bring this argument, because the Supreme Court cannot prohibit the disclosure of this information, precluding redressability. Argus Leader Media additionally asserts that the statutory context of Exemption 4—including multiple uses of identical language in other statutes—suggests that the Exemption 4 only applies to information that causes competitive harm. The outcome of this case will have implications on the disclosure of Supplemental Nutrition Assistance Program (“SNAP”) data and other privately-held data, consumer interests, and public health and safety.

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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).

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Brent Taylor, executive director of the Antique Aircraft Association ("AAA") filed a Freedom of Information Act ("FOIA") request with the Federal Aviation Administration ("FAA") to obtain plans and specifications for a vintage aircraft. After the FAA denied Taylor's request on trade-secret grounds, he sued to compel disclosure of the information. The D.C. Circuit affirmed the district court's finding that Taylor's claim was barred because he had been "virtually represented" in a prior action by Greg Herrick, a fellow AAA member whose prior FOIA request for the same records the Tenth Circuit found to have been properly denied due to trade-secret protections. Taylor asserts that preclusion of his claim on the "virtual representation" theory violated his due process rights because he had no legal relationship with Herrick and received no notice of the prior suit. The FAA counters that preclusion was appropriate because Herrick had adequately represented Taylor's interests in the earlier action. The decision in this case will clarify the circumstances under which courts may bar claims under the "virtual representation" theory and may influence plaintiffs' litigation strategies, broaden defendants' exposure to duplicative suits, and limit the availability of FOIA requests of certain members of the public.

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