United States: Federal Court Orders OFCCP To Release Federal Contractors' EEO-1 Reports

Executive Summary: On December 22, 2023, a federal court in California ordered the OFCCP to release the EEO-1 reports of federal contractors who had filed an objection to the agency's release of their EEO-1 data in response to a Freedom of Information Act (FOIA) request. See The Center for Investigative Reporting v. United States Department of Labor, No. 3:22-cv-07182-WHA (N.D. Cal. Dec. 22, 2023).

Background

Between January 2019 and June 2022, the Center for Investigative Reporting (CIR) sought from OFCCP, through FOIA requests, all federal prime contractors' and first-tier subcontractors' EEO-1 Type 2 Consolidated Reports for the period 2016-2020. These requests were consolidated into a single request in June 2022. The Type 2 Report includes data for all employees of the company (i.e., all employees at headquarters as well as all establishments) categorized by race/ethnicity, sex, and job category. Contractors were afforded an opportunity to object to the release of their EEO-1 data.

OFCCP released the EEO-1 reports of approximately 4,800 contractors who did not object to disclosure. Approximately 70,000 EEO-1 reports of contractors, who timely filed objections, were either withheld or are still under review by the OFCCP. In November 2022, while OFCCP's review was ongoing, CIR initiated litigation in the Northern District of California. On December 22, 2023, the court held that EEO-1 Reports do not contain the type of "commercial" information that is protected from disclosure under FOIA and ordered OFCCP to release to CIR all EEO-1 Type 2 reports for the period requested.

The Court's Reasoning

• EEO-1 data is not "commercial" information exempt from disclosure under exemption 4 of FOIA. Relying on a decision by the D.C. Circuit, the court held that exemption 4 "is designed to shield the public from release of intrinsically valuable business information such as business sales, statistics, inventories, customer lists, and manufacturing processes." The report of headcounts across broad job categories that cut across all industries "cannot itself yield any commercial insight that is specific to the operations of a federal contractor."
• EEO-1 data is not exempt from disclosure by the Trade Secrets Act. The Act prohibits the federal government from disclosing information "concerning trade secrets, processes, operations, style of work, apparatus, or to identify, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association." The Court found the OFCCP's argument that the EEO-1 reports include contractors' confidential statistical data "superficial."
• No Evidence of Foreseeable Harm. OFCCP also asserted the reports should not be disclosed because of the potential loss of competitive secrets. The court, however, found no substantial evidence of direct harm to the contractors.

The Bottom Line

The Court initially ordered OFCCP to produce all withheld EEO-1 reports by January 19, 2024. However, on December 27, the parties agreed to extend the deadline to February 20, to give OFCCP an opportunity to determine whether to appeal the decision.