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BAE Systems moves to enter State Department FOIA fight

Two large defense contracting firms are seeking to enter a Freedom of Information Act lawsuit where the Associated Press is demanding details on a settlement the State Department reached with one of the companies over export control violations.

BAE Systems plc, a British company, and BAE Systems Inc., its U.S.-based affiliate, filed motions in federal court in Washington Thursday asking to intervene in the case.

The companies, successor firms to the former British Aerospace, told U.S. District Court Judge Richard Leon that they're concerned the case could lead to the release of confidential information about the companies and could discourage businesses from entering into settlement talks in similar cases.

"BAES plc and BAES, Inc. now seek to intervene in these proceedings to ensure that they do not suffer harm from the public release of their proprietary and confidential information, and also to ensure the continued integrity of the regulatory process which relies upon the free, open, and voluntary transmission of sensitive information between the regulator and regulated entities," lawyers for the companies wrote.

A consent decree the British firm reached in 2011 settled civil claims over violations of U.S. arms export control laws and regulations. The $69 million civil settlement followed a criminal guilty plea from the company the preceding year, resulting in a fine of $400 million.

The Associated Press requested the BAE-related files in August 2013 and filed suit in March 2015 after receiving only three documents responsive to its request, which focused on Secretary of State Hillary Clinton's role in the case.

Under a longstanding executive order, the companies have been reviewing information proposed for release to the AP. Leon said at a hearing in June that he found that procedure strange, but it is common when records submitted by businesses are sought under FOIA.

It's unclear whether the BAE firms thought some sensitive information was about to be released over the companies' objections, but the motion does say that the State Department turned over records to the AP on five occasions in recent months without providing them to the companies "for review prior to release."

The firms' motions describe the information at issue in the case as "confidential internal audit reports, copies of internal manuals and trainings, proprietary details of export licenses and other business operations, accounts of conversations between DOS and BAES plc or BAES, Inc. officials undertaken in the context of settlement negotiations, detailed DOS reports of the companies' internal compliance systems, and other confidential and proprietary documents."

The government and the AP are not resisting the BAE companies' attempt to join the lawsuit, but AP has indicated it plans to challenge some of the redactions and withholdings in the records.