Use of foia in contractor claims clarified.

• Author: Ganderson, Justin M.
• Position: Government Contrating Insights

* Enacted in 1966, the Freedom of Information Act allows any person, including a government contractor, to request records from an executive agency of the United States, and generally requires that agency to produce those records unless they fall within one or more distinct exemptions.

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Earlier this year, Congress passed the FOIA Improvement Act of 2016 by codifying a presumption of openness, simplifying the process for submitting a request and clarifying ambiguities about an agency's ability to charge fees. For example, the new act limits an agency's authority to withhold records unless it reasonably foresees that disclosure would harm an interest protected by one of the FOIA exemptions or if disclosure is prohibited by law.

In assessing the 2016 Act, some people raised concerns about the stated presumption of openness, and feared that government contractors may need to take extra steps and precautions to shield proprietary information from disclosure. However, there is another side to FOIA that contractors should consider when evaluating the new act: contractors can use FOIA to obtain government documents that may support a Contract Disputes Act claim. This helps to solidify FOIA as an effective and fairly inexpensive discovery tool.

Because of FOIA's relatively unlimited scope and new presumption of openness, a contractor can continue to use it to obtain agency records to explore or bolster a potential claim. For example, a contractor can request government emails and internal documents to determine whether an agency official ordered a change in scope, possessed certain knowledge, or had appropriate authority.

A contractor can ask for internal government reports that may contain helpful admissions. If a contractor believes it was wrongfully terminated or that bad faith played a role in an adverse decision, it can request documents at the root of its suspicions to reinforce its claim.

There is always a chance that a FOIA request may reveal a "smoking gun" that fully demonstrates entitlement. But even if that smoking gun is not discovered, being able to cite government documents that support a position should improve a contractor's chances of receiving a favorable final decision. At the very least, a review of pertinent documents should help a contractor assess the strengths and weaknesses of its potential claims and the government's potential defenses.

Additionally, because an agency's document collection and review...