The Center for Investigative Reporting v. U.S. Department of Labor

Background

The Center for Investigative Reporting (CIR), which publishes Reveal, and CIR staff reporter Will Evans submitted a Freedom of Information Act (FOIA) request to the Department of Labor (DOL). They sought the 2016 consolidated workforce reports, known as Type 2 EEO-1 reports, for 55 named companies.

The reports contain companywide employee totals organized by race or ethnicity, gender, and broad job category. Federal contractors with at least 50 employees must submit EEO-1 reports. The reports help the Office of Federal Contract Compliance Programs monitor contractors’ compliance with an executive order prohibiting employment discrimination by federal contractors.

The DOL identified 36 of the 55 companies as federal contractors subject to its jurisdiction. Twenty companies objected to disclosure under FOIA’s Exemption 4. The DOL agreed with those objections and withheld the information. It released data from companies that did not timely object, and additional companies later chose to release their information. The cross-motions concerned the 10 reports that remained withheld: Xilinx, Applied Materials, Inc., Equinix, Gilead Sciences, Inc., Synopsys, Inc., Docusign, Inc., Agilent Technologies, Box, Oracle America, Inc., and Fitbit, Inc.

Legal standard

FOIA generally requires agencies to disclose records, subject to specified exemptions. Exemption 4 protects commercial or financial information obtained from a person that is privileged or confidential. In a FOIA case, summary judgment is proper when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law.

The court also applied the FOIA Improvement Act’s foreseeable-harm standard. Under that standard, an agency may not withhold information under a discretionary exemption unless it reasonably foresees harm to an interest protected by the exemption, or disclosure is prohibited by law. The agency must also take reasonable steps to separate and release nonexempt information when partial disclosure is possible.

Analysis

The DOL argued that the reports were commercial because they related to the contractors’ business strategies and could cause competitive harm if disclosed. The plaintiffs argued that the information was not commercial or financial.

The court held that the reports’ broad demographic and job-category information did not show specific positions, departments, divisions, segments, corporate structure, or resource allocation. The court found that the government’s declarations overstated the information contained in the reports and did not establish that the reports revealed the companies’ business strategies. It also found the claim that the reports would make it easier for competitors to recruit employees doubtful because the job categories were so general.

Because the information was not commercial, the court held that the DOL was not justified in withholding it under Exemption 4 and did not need to decide whether the information was confidential. The court nevertheless noted that at least Gilead had publicly included a substantial portion of its 2016 EEO-1 information in an annual report, which cast doubt on the government’s confidentiality claim.

The court separately held that the DOL failed to satisfy the foreseeable-harm standard. The DOL did not explain what foreseeable harm disclosure would cause to an interest protected by Exemption 4. The court also found that the DOL had not attempted to segregate and release nonexempt information, such as total numbers, or to redact any portions of the reports.

Disposition

The court denied the government’s motion for summary judgment and granted the plaintiffs’ cross-motion for summary judgment. It ordered the government to produce the 10 remaining EEO-1 reports within 30 days, without redaction.