Argument recap: Court wrestles with the definition of “report”

By Eric M. Fraser
on Mar 3, 2011 at 9:40 am

Eric M. Fraser is the Executive Director for Research for the Committee on Capital Markets Regulation. The views expressed herein do not necessarily represent the views of the Committee.

DISCLOSURE: Mr. Fraser is the author of an article on the question presented by this case; he spoke briefly with counsel to the respondent regarding the article but has not obtained any confidential information or represented any party or amicus in the proceeding.

Schindler Elevator Corp. v. United States ex rel. Kirk, argued on March 1, 2011, presented the Court with a question that is simple to state but difficult to answer: What constitutes a government report or investigation for purposes of the public disclosure bar of the False Claims Act? Specifically, is a response from a federal agency to a request for documents under the Freedom of Information Act (FOIA) a report or investigation? If it is, then a private party may not use information contained in a FOIA response as the basis for a suit under the False Claims Act.

Several Justices were particularly interested in using three types of documents and disclosures as test cases for the parties’ proposed definitions. In the first example, a private person or corporation creates a document and files it with an agency. If the agency collects those documents, and then mechanically searches for certain documents and discloses them in response to a FOIA request, has it created an “administrative … report” (a term which has been interpreted to mean “government report”)?

The second example is a statement by an agency, in response to a FOIA request, that it found no responsive documents. The Department of Labor responded in this manner to some of the FOIA requests at issue in this case.

The third involves a document that an agency creates on its own, but which involves merely mechanical or algorithmic tabulation. For example, each federal agency must compile annual reports listing various metrics about the agency’s FOIA requests and responses, including the volume of requests and median response time.

Both parties agreed that the third example is a report, but they disagreed about the first two. Steven Alan Reiss, appearing on behalf of Schindler, argued that a FOIA response itself is a report, even if it discloses privately prepared documents or the conclusion that no responsive documents were found.

Jonathan A. Willens, appearing on behalf of Kirk, argued that a privately prepared document does not become a government report when it is disclosed via FOIA. Willens and Assistant to the Solicitor General Melissa Arbus Sherry, who argued on on behalf of the United States in support of Kirk, also argued that a response with no documents is not a report. Justice Ginsburg succinctly described that position by stating, “If you request a report, then you get a report.”

The Justices, however, did not appear to embrace either party’s proposed definition. Chief Justice Roberts was skeptical that Schindler’s broad definition of “report” maps onto ordinary parlance, and Justice Ginsburg appeared hesitant to declare that a private document becomes a government report simply because it is disclosed by an agency. On the other hand, Justice Alito wrestled with how to apply Kirk’s definition in a way that would classify the third example as a report but not the first two. Justice Scalia, meanwhile, seemed to appreciate how easy Schindler’s definition is to apply. Under that definition, every FOIA response triggers the public disclosure bar.

Several Justices asked questions about how the False Claims Act and FOIA work in practice. Chief Justice Roberts explained that not all FOIA requests involve merely turning over documents; an agency should screen relevant documents for privilege, privacy, or statutory exceptions. He asked whether these activities involved an investigation or creating a report. Justice Sotomayor was concerned about how the parties’ definitions affect the purposes of the False Claims Act, namely uncovering fraud against the government. She was particularly interested in how the statute works if the private party bringing a suit has some knowledge of fraud but uses FOIA to back up the personal knowledge. Justice Breyer inquired into whether the identity of the requester changed anything. Specifically, he asked the government whether a FOIA request from an agency’s fraud officer could trigger an “investigation.”

Overall, many Justices seemed hesitant to adopt a categorical rule that all FOIA responses trigger the public disclosure bar, but they seemed equally hesitant to adopt the definitions put forward by Kirk and the government.