In December 2019, the U.S. District Court for the Northern District of California made a decisive ruling in the ongoing case of The Center for Investigative Reporting (CIR), et al. vs. U.S. Department of Labor (DOL). Specifically, the court denied the DOL’s motion for summary judgment, while granting the CIR’s cross-motion for summary judgment.
The impetus for the case was the CIR’s January 2018 Freedom of Information Act (FOIA) request to the Office of Federal Contract Compliance Programs (OFCCP), a DOL agency. The CIR originally sought to obtain 2016 EEO-1 Consolidated Reports (i.e., Type 2, or Headquarters reports) for 55 specific companies. However, due to the fact that OFCCP only has jurisdiction over federal contractors and subcontractors, 19 companies were removed from the request. Of the 36 federal contractors, 20 have submitted written objections to the DOL, 5 have since furnished their reports, and another was removed from the request. This leaves the current number of withheld reports at 10.
The EEO-1 report is an annual breakdown of employee demographics that all companies with 50 or more employees must submit to the Equal Employment Opportunity Commission (EEOC). However, the OFCCP and the EEOC work together to administer the reporting, as both agencies rely on this information for their enforcement activities.
Since the case was originally brought forth, there has been much back and forth on whether the OFCCP is obligated to release the reports under FOIA. The crux of OFCCP’s argument is that the EEO-1s are exempt from disclosure under FOIA’s Exemption 4. The agency is citing a landmark Exemption 4 case, Food Mktg. Inst. V. Argus Leader Media (“Argus Leader”) to bolster its stance.
According to Argus Leader, “Exemption 4 shields from mandatory disclosure ‘commercial or financial information obtained from a person and privileged or confidential.” The OFCCP is arguing the EEO-1s are considered commercial, as the information pertains to the companies’ business strategies. The agency is also claiming the reports are financial, as diverse employees could potentially be poached if the data were to be released. However, the CIR and the court have asserted that the aggregated nature of the reports means there is no identifying information that would allow competitors to poach diverse talent, or provide any indication of the companies’ business strategies.
In addition, the court ruled that the OFCCP is also unable to prove confidentiality under Argus Leader, or foreseeable harm under the FOIA Improvement Act of 2016 (FIA). This is due to the fact that at least one of the companies in question in this case has publically released a robust summary of the EEO-1 data from their annual report filing. The OFCCP’s reliance on Argus Leader is also said to be insufficient in proving foreseeable harm because the case preceded FIA.
In its ruling, the court has given OFCCP a 30-day deadline to furnish the 10 remaining EEO-1 reports. They ruling states there should be no redaction in any of the reports, as the agency has not proven foreseeable harm, or the applicability of Exemption 4.
On January 6, 2020, the attorney for the plaintiffs submitted a copy of the decision to the DC District Court and referenced another active case and decision in The Center for Investigative Reporting v. United States Customs and Border Protection et al., which pertained to the application of FOIA Exemption 4 and the applicability of the Argus Leader decision.
DCI will continue to follow the OFCCP-related case, and post relevant updates here on our blog.
By Lily Kerr, HR Analyst at DCI Consulting Group