Center for Investigative Reporting Sues DOL for Withholding Federal Contractor EEO-1 Reports

Seyfarth Synopsis. Continuing a multi-year battle over the release of employers’ EEO-1 Reports, the Center for Investigative Reporting (“CIR”) and reporter, Will Evans, have filed a complaint in the Northern District of California alleging the Department of Labor (“DOL”) violated the Freedom of Information Act (“FOIA”).  In their complaint, they seek the immediate the release of the EEO-1 Reports within 20 days of the Court’s order.

As we reported in late August, Will Evans, a reporter with the CIR, initially submitted a FOIA request to the DOL’s Office of Federal Contractor Compliance (“OFCCP”) in January 2019, seeking the 2016 Type 2 Consolidated EEO-1 Reports for all federal contractors.  CIR has since amended its FOIA request several times, most recently on June 2, 2022 expanding the request to all federal contractors and first-tier subcontractors for 2016-2020 Type 2 EEO-1 Reports. Due to the large number of employers whose EEO-1 Reports were potentially subject to the FOIA request, OFCCP published a notice in the Federal Register notifying contractors of their ability to object to the release of their EEO-1 Reports under FOIA’s “Exemption 4,” which protects the disclosure of “trade secrets and commercial or financial information” that is privileged or confidential. Objections were due on October 19, 2022.

It is our understanding that OFCCP intended to review and evaluate each objection and release any EEO-1 Reports subject to disclosure on a rolling basis.  However, on November 15, 2022, the CIR filed a complaint in the Northern District of California alleging that OFCCP violated FOIA by failing to act on its request within 20 business days and seeking injunctive relief compelling the prompt release and disclosure of the requested records within 20 business days of the Court’s order.

Providing further insight into how it intends to use the EEO-1 Reports if released, CIR asserts in its complaint, “[t]his data is instrumental to ensuring that federal contractors, obtaining taxpayer dollars, diversify their workforces in compliance with the federal law.”  Notably, CIR included as an exhibit to its complaint, a November 1st email from OFCCP confirming its intention to release to Will Evans “the names of those federal contractors that objected under an applicable FOIA exemption and whose data was removed from public release.”

Unless an employer wishes to intervene in the law suit, no action is required of employers at this point, regardless of whether or not the employer submitted an objection to the FOIA request. However, in light of the lawsuit and notice that OFCCP intends to release the list of objectors, employers who submitted objections should evaluate their internal communication strategies.