EEO-1 Report FOIA Litigation Update

U.S. District Court Concludes EEO-1 Reports are Not Confidential "Commercial" Information Subject to FOIA Protections - Court Orders Disclosure of Requested EEO-1 Reports by February 20, 2024. U.S. DOL Considering Whether to Appeal Decision.

The District Court's Decision

In response to a Freedom of Information Act (FOIA) request by the Center for Investigative Reporting, OFCCP withheld the EEO-1 Reports of those federal contractors who timely objected to the release of their Reports. The federal District Court for the Northern District of California has now ordered OFCCP to release, by February 20, 2024, the withheld EEO-1 Reports.

The court concluded that such reports are not protected by FOIA or the Trade Secrets Act because they do not contain confidential commercial information or trade secrets. Thus, the court found there is no basis for OFCCP to withhold the reports in response to the FOIA request. .

The U.S. Department of Labor – the named defendant in the lawsuit seeking to compel release of the reports under FOIA – is currently considering whether to appeal the court’s decision and seek a stay of the court’s order pending an appeal. The deadline for that decision is also February 20, 2024.

Background of FOIA Requests

In November 2022, the Center for Investigative Reporting and its staff reporter, Will Evans, filed a request for the Consolidated (Type 2) EEO-1 Reports of federal contractors for the years 2016 through 2020.

In response to the FOIA request, OFCCP withheld the Reports, and launched a Portal via which federal contractors could object to the release of their Reports. Some federal contractors decided not to object to the FOIA request. Others filed objections, primarily pursuant to FOIA Exemption 4 covering confidential commercial information. Exemption 4 protects from disclosure commercial or financial information that is also confidential or privileged. Some objectors also argued that disclosure is prohibited by the Trade Secrets Act.

Given recent increased attention to EEO-1 Report data – in connection with DEI efforts, ESG disclosures, as well as a wide-ranging EEO-1 FOIA request received by OFCCP – it’s a good idea to periodically review the accuracy of your EEO-1 category assignments, and to be prepared to put the reports (including data trends) in context relative to your DEI efforts and ESG-related pronouncements.

OFCCP had previously released the EEO-1 Reports of federal contractors subject to the FOIA request who did not timely object to the release of their Reports.

Will DOL Appeal? Will Any Contractors Seek to Intervene?

We expect that the DOL will soon decide whether to appeal the District Court’s decision, or comply with its requirements

Some federal contractors may seek to intervene in the litigation and appeal the District Court’s decision, independent of the DOL.

Silberman Law will monitor the developments in this case and will provide an update as soon as possible.

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