NOTICE TO CONTRACTORS
UPDATE on the Disclosure of Type 2 EEO-1 Data in Response to Freedom of Information Act Request
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) in December 2023. The Department of Labor is appealing the court ruling.
This notice is being sent primarily to federal contractors subject to the FOIA request for Type 2 EEO-1 data from 2016-2020 but is being extended to the entire contractor community as the outcome of this case may impact the future release of EEO-1 Type 2 data.
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, 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.
UPDATED
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. On February 15, 2024, the Department of Labor filed an emergency motion to stay the deadline for production of the responsive data pending appeal. Production is temporarily stayed by the U.S. District Court for the Northern District of California pending a response by Plaintiffs to the Department’s motion. Plaintiffs' response was due at noon PST on February 23, 2024. An order will likely be issued by the court based on the briefing to resolve the matter.
If you are not the appropriate contact for this notice, please forward this message to the appropriate department within your organization.
Contact the OFCCP National FOIA Office
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.
You may contact us at the information below.
National FOIA Office
Office of Federal Contract Compliance Programs
U.S. Department of Labor
Helpdesk Number: 1-800-397-6251
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