Using FOIA Request During Litigation

Can the Government Deny Your FOIA Request During Litigation?

Submitting a FOIA request can sometimes prove fruitful during litigation. However, government contractors, or other litigants, must still be aware that a FOIA request should not be used as the basis to bring a lawsuit.

During government contract disputes, a FOIA request can be a good tool to obtain information that you could not otherwise get through litigation discovery.

However, the U.S. Supreme Court has ruled in a case that the Freedom of Information Act 5 USC 552 is not meant to sidestep litigation and discovery rules. Also, the Court stated that Government agencies should not deny a FOIA request from a party that is currently litigating against that agency.

FOIA information cannot be the basis of a False Claims Act lawsuit.  A person should not base their False Claims Act lawsuit on information received from a FOIA inquiry. See 31 USCA 3730 (e). If you are a company facing a False Claims Act violation, you should always be prepared to show where the person bringing the lawsuit received the information. This can be a viable reason for getting the case dismissed.

The government will always try to shelter the request under FOIA exemptions. Getting information from the government can sometimes be difficult. The agency may attempt to conclude that your FOIA request is not allowed under one of the FOIA exemptions. This could be because of interagency investigations or some other reason. Sometimes having a lawyer to apply the particular facts to 31 USCA 3730 could help.

Does the Government have to notify you about a FOIA inquiry? Executive Order 12,600 requires government agencies to notify the holder of the information and to establish internal notification procedures. Agencies should provide the owner with an opportunity to object to information sought under the FOIA request.

• Contractors should always label information to the government as confidential.
• Failure to do so may run the risk of the public having access to their confidential information.

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For help in defending or submitting a FOIA request under 5 USC 552, please call our FOIA lawyers for immediate help. 1-866-601-5518. FREE INITIAL CONSULTATION.