OFCCP’s attempt to apply Exemption 4 fails; can’t demonstrate competitive harm will be caused or that the EEO-1 report is commercial
On January 4, 2018, the Plaintiffs submitted a Freedom of Information Act (FOIA) request to the OFCCP seeking disclosure of 2016 EEO-1 reports for 55 companies. On March 13, 2018, the Plaintiff was informed that 36 of the named 55 companies were government contractors subject to OFCCP’s jurisdiction. The following day, OFCCP advised the 36 federal contractors of the FOIA request as required by the notice requirement for confidential commercial information as described in 29 C.F.R. § 70.26. The letters informed the companies that they had 30 days of receipt of the letter to object in writing, and that their failure to respond would result in the release of their EEO-1 data report.
On April 18, 2018, a second notice was sent to the companies that had not objected within the initial 30 days informing them that if they failed to object by close of business on May 31, 2018, their EEO-1 reports would be released to the Plaintiffs. As of this date, the plaintiff was informed that 14 of the 36 companies objected to the release of the data on grounds of FOIA Exemption 4. By March 31, 2018, a total of 20 of the 36 companies submitted written objections to DOL. On April 18, 2018, OFCCP informed the 20 objecting submitters that their EEO-1 reports were exempt from mandatory disclosure pursuant to Exemption 4 of FOIA. On August 16, 2018, OFCCP released the EEO-1 data for the non-objectors.
OFCCP informed plaintiffs on February 22, 2019, that it would delay the issuing of a final response to the FOIA request pending the outcome of the Supreme Court decision in Argus Leader. The Plaintiffs followed up with an administrative appeal on March 1, 2019. After the appeal, several of the remaining contractors decided to release their EEO-1 reports so the pending motions only pertained to the following companies: Xilinx, Applied Materials, Inc., Equinix, Gilead Sciences, Inc., Synopsys, Inc., Docusign, Inc., Agilent Technologies, Box, Oracle America, Inc. and Fitbit, Inc.
On August 23, 2019, DOL filed a motion for summary judgment and the Plaintiffs immediately filed an opposition to the motion. According to the courts, “to prevail on a motion of summary judgment in a FOIA case, an agency must demonstrate that, drawing all reasonable inferences in the light most favorable to the requester, there is no genuine issue of material fact with regard to the agency’s compliance with FOIA, both in terms of conducting a search reasonably calculated to uncover all relevant documents and withholding only those documents or pieces of information that fall within one of the specified exemptions.” Several of the companies contended that information furnished in the EEO-1 “concerns its labor strategy, demographics, recruiting, and allocations of resources across its segments.” And that disclosing the EEO-1 would “provide its competitors' insights into its strategy, operations, recruiting, and labor costs, creating substantial competitive harm.”
The Court “finds the claim that the EEO-1 reports would make it easier for competitors to lure away talent to be dubious since the job categories are so general.” The Court finds that the “Government has failed to make a showing that the demographic information contained in the EEO-1 reports is commercial…. And the government was not justified in applying Exemption 4 to the EEO-1 reports, and they must be produced unredacted.”
On December 10, 2019, the Court ruled that the Government shall produce the 10 remaining EEO-1 reports within 30 days of the order, and do so without redaction.