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Should Contractor FOIA Objections be Labeled?

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For years, I have been aware of President Ronald Reagan’s Executive Order (EO 12600) that allows contractors, and others, to tell the government what it should and shouldn’t release to the public under the Freedom of Information Act (FOIA). Specifically, entities can “object to the [government] disclosure of any specified portion of the information and to state all grounds upon which disclosure is opposed.”

Despite my many years of submitting FOIA requests, I have never had an agency notify me that in addition to an internal review, contractors might be reviewing the government’s records. Until now. The Defense Contract Management Agency (DCMA) recently stated in an email response that, “Depending on the quantity of documents, the need to refer documents to another Agency or the need for 12600 referrals, we anticipate responding to your request in the next two to four months.” (Emphasis added) My May 2013 request was for corrective action requests, cure notices, and correspondence related to contractors involved in trafficking in persons in the United States or abroad.

FOIA requires that agencies indicate, when feasible, the amount of the information deleted and the exemption. It’s customary to receive a record, possibly with redacted sections or pages, and a citation to one of the nine FOIA exemptions. Such markings are helpful to requesters, as they provide a sense of the information that was redacted and of the government’s justification. Exemption (b)(4) is the most frequently cited exemption when the government redacts contractor information from records. Specifically, it exempts from public release “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”

I understand the need to protect some contract information, but I often think that the government rubber stamps the contractor’s desires and redacts more information than it should. Recently, POGO wrote about unjustified redactions in a Pentagon Inspector General (IG) audit report. The IG cited exemption (b)(4) to redact information that clearly is not privileged or confidential, and it might make you wonder if any of those redactions were demanded by the contractor—Alenia North America—during a 12600 review.

You can stop wondering.

In an email to POGO, the DoD IG confirmed that Alenia reviewed the report, objected to information being released, and that as a result the IG redacted the information from the report. The IG stated that:

The FOIA Office does not make determinations in advance regarding whether or not a document contains company proprietary information. We always consult with the submitter and rely on them to provide a sounds basis, in accordance with Exemption 4, as to why the information should be redacted.

The government should be required to inform FOIA requesters when a 12600 review was conducted and to label as “12600” any information that was redacted subsequent to that review (although, based on the DoD IG’s process, I’m assuming that any (b)(4) redactions are based on company objections because the government doesn’t make determinations about what is commercial proprietary). It might be too late to get a change into the FOIA Improvement Act, but the Office of Information Policy (OIP) at the Department of Justice—the agency responsible for encouraging agency compliance with FOIA—could change regulations to require a specific notation that the objection was made pursuant to 12600. In addition, an OIP audit of the 12600 process might help the public feel more confident that the system remains tilted toward openness and not hiding information at the suggestion of someone with something to hide.

The public deserves to know who objected to the release of information, especially if it was a non-governmental entity.

And to the employee in CACI’s general counsel office who, years ago, offered me dinner if I could prove that companies request information to be withheld from the public and that the government rubber stamps that request, I would like to go to Marcel’s. I’m hungry.

By: Scott H. Amey, J.D.
General Counsel, POGO

scott amey Scott Amey is General Counsel for the Project On Government Oversight. Some of Scott's investigations center on contract oversight, human trafficking, the revolving door, and ethics issues.

Topics: Open Government

Related Content: Government Secrecy, Contractor Accountability, Open Government, FOIA, Information Access

Authors: Scott H. Amey, J.D.

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