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Supreme Court Set to Hear Three Cases Involving the FOIA

While there are many years when no case involving the Freedom of Information Act (FOIA) reaches the Supreme Court, this term the Supreme Court has before it three such cases.  One of the cases is itself an action brought under the FOIA by a requester challenging a withholding decision of an agency.  By contrast, the second case involves a ruling arising in the context of a private company’s challenge to a disclosure determination made by an agency.   In the third case, the issue concerns the effect of a FOIA response on the ability of a party to bring a claim under the False Claims Act.      

            The first case is a traditional FOIA action.  In Milner v. U.S. Department of the Navy, 130 S. Ct. 3505 (2010), the petitioner, a FOIA requester, sought review by the Supreme Court of a ruling of the Court of Appeals for the Ninth Circuit, which had affirmed a district court grant of summary judgment to the Department of the Navy.  The issue before the Supreme Court is whether Exemption 2 of the FOIA, 5 U.S.C. 552(b)(2), exempts from mandatory disclosure technical explosive and ammunition safety maps and data used by Navy personnel for the safe handling and storage of ordnance at Naval Magazine Indian Island.  Argument is set for December 1, 2010.

            The second case is FCC v. AT&T, Inc., No. 09-1279, 2010 WL 1623772 (U.S. Sept. 28, 2010), where the petitioners are the FCC and the United States.  In this case the government sought review by the Supreme Court of a ruling by the Court of Appeals for the Third Circuit which had been made in the course of an action brought by AT&T under the Hobbs Act challenging a disclosure determination made by the FCC.  The issue before the Supreme Court is whether Exemption 7(C) of the FOIA, 5 U.S.C. 552(b)(7)(C), which provides protection for “personal privacy” can be extended to protect the “privacy” of corporate entities.  Argument is set for January 19, 2011.

            The third case does not involve access issues or the scope of a FOIA exemption, but instead addresses the impact of a FOIA response on a party’s ability to establish a claim under the False Claims Act.  In Schindler Elvtr. Corp. v. U.S. ex rel. Kirk, No.10–188, 2010 WL 3116440 (U.S. Sept. 28, 2010), the petitioner, a corporation, sought review by the Supreme Court of a ruling on those issues by the Court of Appeals for the Second Circuit.  No argument date has been set for this case.  (posted 11/24/2010)

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