Law360, New York (January 21, 2015, 7:46 PMET) -- The U.S.Department of Defense and Sikorsky Aircraft Corp. on Wednesday appealed aCalifornia federal judge's order to cough up Sikorsky's subcontracting data ina Freedom of Information Act fight with the American Small Business League.

The DOD and Sikorsky asked the Ninth Circuit to overturn U.S. District JudgeWilliam Alsup's Nov. 23 orderrequiring the agency to turn over Sikorsky's never-seen subcontracting plan,which ASBL alleged will reveal whether small businesses are receivingsubcontracts as required by law.

In his ruling, Judge Alsup rejected the DOD's claims that the data is exemptfrom FOIA disclosure because of privileged financial or business informationabout Sikorsky.

ASBL President Lloyd Chapman told Law360 that attempts to withhold theinformation suggest the DOD and Sikorsky think its release would bedamaging. 

"The information I'm requesting will probably show the Pentagon has cheatedsmall businesses out of $2.5 trillion [since 1990]," Chapman said, noting JudgeAlsup called the case a perfect example of David vs. Goliath. "They are tryingto stall. They think this information will be damaging."

Chapman said the information will show the extent to which large defensecontractors are complying with the Small Business Act's mandate that smallbusiness contractors owned by women, veterans and minorities receive a fairshare of the billions of federal funds annually allocated to defense spending.

In December, the judge delayed his order requiring the Pentagon to turn overthe information until Jan. 22 after the U.S. solicitor general intervened andasked for a 60-day stay to consider an appeal. Although the judge granted theagency's request for a stay, he said the DOD would have to ask the court ofappeals if it wanted an additional extension. The DOD has argued throughout thesuit that the data is exempt because of trade secrets and privileged orconfidential information.

On Tuesday, Judge Alsup granted Sikorsky's motion to intervene, but noted thatthe company "should not have sat on the sidelines and waited this long tointervene."

According to the ASBL, the Small Business Act of 1953 would normally requirelarge contractors to submit individual subcontracting reports and summarysubcontracting reports to show how government contracts and subcontracts arebeing awarded to small businesses.

But since 1990, when Congress passed the "test program" as part of a defenseappropriations bill, some large defense contractors have been able to do awaywith these reports and instead file comprehensive subcontracting plans, whichare meant to identify "all subcontract amounts awarded to small businesses onall government contracts the prime contractor fulfills," ASBL noted.

"We are pleased with the judge's ruling and look forward to participating inthe appeal," a representative for Sikorsky said.

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