DOD Fights L.A. Times on $40B Missile System Info

     LOS ANGELES (CN) – The Department of Defense asked a federal judge to dismiss an L.A. Times request for information on a $40 billion counter-ballistic missile system, claiming the information is exempt from disclosure.
     The Times in January asked the court to order the Pentagon to release records of bonuses and incentives it paid contractors for delivering the missile system – the Ground-based Midcourse Defense System , or GMD.
     In an answer filed Friday, the Pentagon asked the court to throw out the case.
     The Department of Defense claims that the records are exempt from disclosure under the Freedom of Information Act, called the request “defective,” and said that the Times had not “exhausted their administrative remedies.”
     “Defendant denies that plaintiff has withheld any ‘records’ sought by the FOIA request,” the April 17 response states. “Further, defendant avers that by letter of March 31, 2015, defendants provided a response, which more than fully satisfied defendant’s obligations to respond to the defective FOIA request at issue.”
     The answer claims that the Pentagon’s letter makes the Times’ lawsuit moot.
     Times’ attorney Karl Olson told Courthouse News that the Department of Defense in April released some of the information the Times had requested, providing an “aggregate” total of bonuses and incentives.
     Olson said he did not have the figures in front of him.
     “We disagree with the assertion that they made that the case is moot. We believe the information they provided on April 1 is not sufficient,” said Olson, a partner with San Francisco firm Ram, Olson, Cereghino & Kopczynski.
     Thom Mrozek, a spokesman for U.S. Attorney’s Office in Los Angeles, said the government had responded to the request in March.
     “In light of this, it is incorrect to assert in the story that DoD or the Justice Department attorneys representing the agency in the FOIA litigation have claimed any FOIA exemption,” Mrozek wrote in an email Tuesday, after this article was published.
     An affirmative defense of the government’s 7-page answer states, however, that the information the Times sought is exempt from disclosure under Section 552(b)(4) of the Freedom of Information Act.
     Attorney and journalist Peter Scheer said the government may believe it is being asked to disclose sensitive trade secrets.
     Scheer, a director of the First Amendment Coalition, said the exemption the government cited in its answer does not apply to information created by a government agency. He said the exemption applies to information created by a “private third party.”
     “It strikes me that the government’s position here is very weak,” Scheer said in an interview.
     Times reporter David Willman claimed that the Defense Department blocked the newspaper’s requests last year for financial records of the sums paid to companies that worked on the system.
     “The GMD system is designed to protect Americans against threats from rogue nations such as North Korea and Iran,” the lawsuit states. “Although American taxpayers have spent $40 billion during the past decade to develop the GMD system, the missile shield’s performance is spotty at best, even in carefully choreographed tests that are more predictable and less challenging than an actual attack would be.”
     Boeing, defense contractor Raytheon, security company Northrop Grumman, and space technology company Orbital Sciences delivered the system to the government, according to the Times.
     The Times asked for financial records from Dec. 31, 2001 to March 1, 2014 under the Freedom of Information Act. But the government asserted that the documents contained sensitive trade secrets or financial information and denied the request.
     In his coverage of the defense system, Willman reported that the system failed eight of 17 interception tests. Of four interception tests between January 2010 and June 2014, the system failed three.
     The public has a right to know how much was paid in bonuses and incentives because of the “staggering sums spent” on the system, the newspaper said, adding that it filed suit after the government’s three-month statutory deadline to consider its appeal.
     U.S. District Judge Dean Pregerson presided over an in-chambers scheduling conference in the case Monday afternoon.
     Assistant U.S. Attorney Ruth Kwon, representing the government, did not immediately respond to an email request for comment after business hours Monday.

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