The Office of Federal Contract Compliance Programs (OFCCP) received a court ruling on its cross motion for summary judgment from the Northern District Court of California (No. 22-cv-07182-WHA)
This notice is being sent to entities OFCCP determined not to be federal contractors during reporting years 2016-2020. EEO-1 reports belonging to these entities may still be subject to the FOIA request pending further litigation.
SUMMARY JUDGMENT
In April 2023, a court order in the matter of Center for Investigative Reporting v. U.S. Department of Labor, 3:22-cv-07182-WHA (N.D. Cal.), directed DOL to file a motion for summary judgment based on six “bellwether” objecting contractors to determine whether the requested Type 2 EEO-1 diversity reports are exempt from disclosure under FOIA Exemption 4. Following briefing on the motions, the district court ruled on December 22, 2023, and held that DOL had not demonstrated “the inherently commercial nature of the diversity data” and therefore the EEO-1 reports could not be considered “commercial information” under FOIA Exemption 4. The Court also ruled that “there is no commercial gain to be found in the head count or demographic data within the EEO-1 report” and therefore there could be “no compounded effect by releasing five years’ worth of data to plaintiffs.” The court did not reach the Exemption 4 confidentiality question because both the commerciality and confidentiality prongs must be met to support withholding the reports under Exemption 4.
In addition to addressing the question of commerciality, the court denied the Plaintiffs' cross-motion regarding the EEO-1 reports of the 621 entities that OFCCP deemed not to be subject to OFCCP reporting requirements. Although the Department of Labor argued that the EEO-1 reports of those entities are not OFCCP records since the entities are not required to submit the reports to OFCCP, the court found that the claim raised a genuine issue of material fact that could not be resolved on summary judgment. That issue remains open in the case.
OFCCP was ordered to produce the remaining EEO-1 reports at issue within 28 days of the date of the order. On December 28, 2023, the court granted a stipulation to extend the deadline for release of the EEO-1 reports at issue to February 20, 2024. OFCCP is currently evaluating the court decision and potential next steps and will provide further information or guidance once the evaluation process has concluded.
If you are not the appropriate contact for this notice, please forward this message to the appropriate department within your organization.
You may contact the OFCCP FOIA Help Desk by phone or email with any questions related to this message. Please note that our business hours are from 9:00 a.m. to 5:00 p.m. (EST), Monday through Friday.
Office of Federal Contract Compliance Programs
U.S. Department of Labor
Helpdesk Number: 1-800-397-6251
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