FOIA Requests in False Claims Act Lawsuits
Whether a federal agency's response to a Freedom of Information Act request is a "report ... or investigation" within the meaning of the False Claims Act public disclosure bar, 31 U.S.C. § 3730(e)(4).
NCLC urged the Supreme Court to rule that information from a Freedom of Information Act (FOIA) request cannot be leveraged in a False Claims Act (FCA) qui tam action. Relying on information obtained from a FOIA request, a former employee of Schindler Elevator Corporation alleged that the company failed to comply with veteran reporting requirements for federal contractors. In its brief, NCLC argued that FOIA only permits "genuine whistleblowers" with original and valuable information otherwise unavailable to the government to bring qui tam lawsuits. NCLC argued that the Second Circuit’s erroneous decision allows someone with no first-hand knowledge of fraud who merely obtains publicly available information from the government’s own records to litigate an FCA action on behalf of the United States—and assert the entitlement to tens of millions of dollars for doing so, as occurred here.
Previously, NCLC filed an amicus brief urging the Court to grant certiorari.
Held: A federal agency’s written response to a FOIA request for records constitutes a “report” within the meaning of the FCA’s public disclosure bar.
Amicus brief supporting cert. filed 9/1/10. Cert. granted 9/28/10. Amicus brief on the merits filed 12/6/10. Decided 5/16/11.