we were surprised that the Defense Contract Management Agency (DCMA)
posted the F-35 Joint Strike Fighter progress reports online? Well,
one of the reasons is that when agencies like DCMA release this kind of
information, defense contractors respond by filing a "reverse-FOIA," like the one upheld yesterday by District
of Columbia Circuit's Court of Appeals.
The decision revolves around a Peabody award winning investigation by WTNH News Channel 8 Investigative Reporter Alan Cohn about defective parts on Black Hawk helicopters (more about that investigation can be found on POGO's blog here). When DCMA agreed to respond to one of Cohn's Freedom of Information Act (FOIA) requests in part, Sikorsky, the manufacturer, filed reverse FOIAs to prevent the documents being released. (Sikorsky's suit was later combined with a reverse-FOIA filed by engine manufacturer Pratt & Whitney, which sought to prevent the release of similar documents.)
Sikorsky argued that releasing the DCMA's Corrective Action Requests to the public might make the company cooperate less with the DCMA in correcting problems, dispute the DCMA's opinion more often and share less information with DCMA. Today the court agreed in part that "DCMA’s decision to release the documents was arbitrary and capricious" by not properly applying FOIA exemption 4 ("trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential"):
DCMA instead concluded, without more, that release of the documents will not cause Sikorsky or Pratt substantial competitive harm. A naked conclusion, however, is not enough....Accordingly, because DCMA’s conclusionary statement is 'unreviewable,' id., we must remand for it to “examine the relevant data and articulate a satisfactory explanation for its action,” if it can, “including a ‘rational connection between the facts found and the choice made.’
We of course disagree. POGO agrees with the Peabody award committee that "there is no question of the national importance of WTNH's Team 8 unit's investigation of rumors of quality-control problems," especially since the "investigation culminated in 2006 with Sikorsky acknowledging its problem with defective rotors, gear-box housings and other parts, taking corrective action and shaking up its corporate structure...helping to safeguard personnel." Moreover, our statement when this suit was filed still stands:
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.
-- Mandy Smithberger