Holding the Government Accountable

Sikorsky's Reverse FOIA

A major defense contractor has sued the Defense Department (DOD) to prevent documents responsive to a Freedom of Information Act (FOIA) request from going public. According to the reporter who made the request, the Defense Contract Management Agency (DCMA) "tells me this is the first time a major defense contractor has sued DOD to prevent the results of a FOIA from going public." (late update--ed.'s note: After speaking with a knowledgeable lawyer on the topic of Reverse FOIA suits and looking through a number of cases of such suits, POGO has found that there are actually a number of cases where contractors have sued DOD and other agencies. Nonetheless POGO feels this is an important topic, in fact it is even moreso with the discovery that Reverse FOIA suits occur often.)

New Haven, Connecticut WTNH News Channel 8 reporter Alan Cohn made a FOIA request on March 4, 2004 to the DCMA for Corrective Action Requests (CARs). CARs are requests to contractors by the DCMA to fix the causes of recurring problems that put the contractor out of compliance with its contract with the military.

After a series of appeals, first between Cohn and DCMA and later between Sikorsky and DCMA, it was decided by the DCMA in a letter dated December 1, 2005 to grant Cohn's FOIA request in part and to deny it in part. DCMA notified Sikorsky the next day that it would release the redacted CARs on December 13, 2005 unless Sikorky filed a "reverse" FOIA suit in a US District Court before then.

It did. Sikorsky filed suit against the DCMA and DOD in the US District Court for the District of Columbia on December 12, 2005 on four counts: 1) Confidential Business Information--Exemption 4 of FOIA; 2) Trade Secrets Act; 3) Arbitrary and Capricious Agency Action; and 4) the Declaratory Judgment Act. Sikorsky has argued that if CARs sent to Sikorsky are turned over to the public, then it may cooperate less with the DCMA in correcting problems, dispute the DCMA's opinion more often and share less information with DCMA.

Click here to view Sikorsky's "Reverse-FOIA" Complaint (pdf).

Though there clearly is an interest in protecting true proprietary secrets, Sikorsky's attempt to stifle information that may reflect poorly on their aircraft is something else. It is a move characteristic of a company seeking to avoid public accountability and to hide deficiencies in the aircraft we entrust will transport our men and women in uniform safely, securely and effectively.