The opinion of the court was delivered by: HART
This matter came on for consideration by the Court on cross-motions for Summary Judgment and on defendants' Motion to Dismiss. Upon consideration of said motions, with points and authorities in support thereof, and of oral arguments by counsel for the parties, and after examination of the 3-volume Contract Audit Manual (DCAAM-7640.1) of the Defense Contract Audit Agency of the Department of Defense, the Court finds as follows:
1. There is no dispute of any material fact between the parties;
2. Plaintiffs have duly requested, under 5 U.S.C. § 552, that defendants disclose to plaintiffs the entire contents of the Audit Manual mentioned above;
3. Certain portions of said Manual are available to the public and, therefore, readily available to plaintiffs. The defendants contend that the remaining portions of the Manual, that is the nonpublic portions, are "related solely to the internal personnel rules and practice of an agency" and, further, are "interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency" and are, therefore, exempt from disclosure pursuant to 5 U.S.C. § 552(b)(2) and (5).
4. The Defense Contract Audit Agency (hereafter DCAA) was established by the Department of Defense on June 9, 1965. DOD Directive 5105.36. The purpose and function of DCAA is to verify from an examination of Government contractors' books and records that the costs incurred in the performance of contracts comply with the Armed Services Procurement Regulations establishing the criteria pursuant to which the Government allows or disallows contract costs. DCAA, at any given time, is responsible to audit some 43,000 contracts involving $50,000,000,000. This work is done by more than 3,000 auditors.
In view of the number of contracts involved, it is not feasible, with the personnel available, to audit and verify, in detail, all charges to all contracts. Audits must be conducted on a selective basis.
5. To require the Government to make public to Defense Contractors the non-public portions of the Contract Audit Manual would be comparable to requiring one football team to give its "play-book" to the opposing team before a game.
With the knowledge of the procedure set forth in the non-public part of the Manual a defense contractor, whose complete honesty left something to be desired, could claim unallowable costs in areas likely to receive little attention, remove supporting data of a damaging nature in areas subject to scrutiny and, otherwise, take steps that might well result in bilking the Government, and hence the taxpayers, of hundreds of millions of dollars on Defense Contracts.
1. The non-public portions of the 3-volume Contract Audit Manual (DCAAM 7640.1) are exempt from disclosure to plaintiffs under 5 U.S.C. § 552(b)(2) and 5 U.S.C. § 552(b)(5).
2. Plaintiffs' Motion for Summary Judgment must be denied. Defendants' Motion for Summary Judgment must be granted. Defendants' ...