FOIA Advisor

Q&A: Defense contractors on the lookout?

Q&A (2018)Ryan MulveyComment

Q. Is it possible, under the FOIA, to obtain information about the list of companies that will be audited by the Defense Contract Management Agency ("DCMA")?

A. Records concerning prospective or scheduled audits are likely controlled by multiple agencies within the Department of Defense ("DOD").  DCMA is primarily tasked with contract administration; after a contract is awarded, DCMA ensures contractor performance.  Formal auditing before and after a contract award, however, appears to be undertaken by the Defense Contract Audit Agency ("DCAA").  If you are looking for records concerning companies under audit, or which are slated for audit, then you should consider submitting FOIA requests to both DCMA and DCAA.

That being said, any responsive records are likely to be heavily redacted or withheld in full.  First, these records could be protected by Exemption 5, insofar as they reflect DOD's deliberations about which contractors to audit (or not to audit!).  Second, to extent the records contain specific details about any one contractor, Exemption 4 may be used to withhold privileged or confidential business information.  Finally, depending on what sort of audits we're talking about, Exemption 7 could be in play, too.  Routine administrative or oversight audits arguably do not fall within the scope of a "law enforcement purpose," unless they are later connected to another investigation.  But if there is any nexus between a scheduled audit and an examination of potential illegality, then the agency could have a colorable Exemption 7 argument and it will be that much more difficult to get useful information.