Center for Investigative Reporting v. United States Department of Labor

Background

The Center for Investigative Reporting, a nonprofit investigative news organization, and Will Evans, a staff reporter and CIR employee, brought this Freedom of Information Act (FOIA) action against the United States Department of Labor. The Department oversees the Office of Federal Contract Compliance Programs (OFCCP). Federal contractors with at least 50 employees must submit EEO-1 reports containing employee counts by job category and information about employees’ gender and racial or ethnic background.

Between January 2019 and June 2022, the plaintiffs submitted four FOIA requests, later consolidated, seeking EEO-1 reports submitted by federal contractors from 2016 through 2020. The request covered approximately 75,000 reports from 24,355 contractors. OFCCP released reports from contractors that did not object, while 4,796 contractors objected to disclosure. The court selected representative objectors for the parties’ summary-judgment motions; the order identifies DHL Global Business Services, Network Management Resources, Inc., Allied Universal Security Services, Brandenburg Industrial Service Co., and NorthShore University HealthSystem as five bellwether objectors.

Collateral Estoppel

The plaintiffs argued that the Department was barred from relitigating whether the EEO-1 reports were protected by FOIA Exemption 4 and the Trade Secrets Act because those issues had been litigated in an earlier related proceeding. The court rejected that argument. It held that nonmutual offensive collateral estoppel—an attempt by a party to prevent an opponent from relitigating an issue decided in an earlier case—does not apply against the government. The Department therefore was permitted to raise the issues again.

FOIA Exemption 4

FOIA Exemption 4 protects certain commercial or financial information obtained from a person that is privileged or confidential. The court held that the Department did not establish the required commercial nature of the EEO-1 reports. The reports used broad job categories and did not directly reveal specific operational or financial information about the contractors.

The court rejected arguments that employee headcount and demographic information were inherently commercial or that the reports necessarily revealed contractors’ business strategies. It found that the declarations submitted by the Department and the bellwether objectors generally showed only a vague connection between the data and commercial success. The court also found that the specific evidence offered by Allied Universal did not establish that its staffing strategy could be determined from the reports, because the reports did not include other relevant metrics such as hours worked, billing rates, or staffing costs.

Because the court found that the reports were not commercial, it did not decide whether they were confidential under the Supreme Court’s confidentiality test. The court denied the Department’s motion to withhold the EEO-1 reports under Exemption 4.

Trade Secrets Act

The Department also argued that the Trade Secrets Act, 18 U.S.C. § 1905, prohibited disclosure of the reports. The court rejected that argument, stating that FOIA Exemption 4 and the Trade Secrets Act are no longer coextensive after the Supreme Court changed the FOIA confidentiality test. The court was not persuaded that the demographic information in the reports qualified as protected “confidential statistical data” under the Trade Secrets Act. The court denied the Department’s motion on that issue.

FOIA Improvement Act

The FOIA Improvement Act of 2016 generally requires an agency to withhold information only when it reasonably foresees harm to an interest protected by an exemption or when disclosure is prohibited by law. The court concluded that the Department did not qualify for protection under Exemption 4 and that the Trade Secrets Act did not apply in this context. It therefore held that the Department was required to disclose the reports and did not need to separately satisfy the foreseeable-harm test.

Delay in Responding to Requests

The plaintiffs sought a declaration that the Department violated FOIA by delaying disclosure for years. The court found that the Department failed to provide timely determinations for the first three FOIA requests. It nevertheless denied the request for declaratory relief. The court concluded that a declaration was not appropriate because, although the Department violated FOIA’s deadlines, the record did not show that its conduct was intentional, persistent, and extreme. The court also considered the large scope of the requests, the need to process years of data, notifications to thousands of entities, and thousands of objections.

621 Reports and Disposition

The order states that the plaintiffs challenged the withholding of 621 reports and that the Department argued those reports came from entities that were not federal contractors, or were not under OFCCP jurisdiction, when the reports were submitted. The court stated that this disagreement raised a genuine issue of material fact. The provided opinion text ends before explaining the court’s complete ruling on that issue.

In its conclusion, the court stated that the plaintiffs’ and the Department’s cross-motions for summary judgment were denied in part and granted in part. It ordered the Department to produce the remaining EEO-1 reports at issue within 28 days.