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Ruling Blows ‘Gaping Hole’ in FOIA Shields for Diversity Data

Dec. 24, 2019, 3:15 PM

Federal contractors may have lost certainty that the Labor Department can keep their workforce diversity reports out of the public domain by shutting down FOIA requests, after a federal judge ordered the agency to release that data from 10 companies.

Judge Kandis A. Westmore of the U.S. District Court for the Northern District of California ruled earlier this month in favor of journalist Will Evans with the Center for Investigative Reporting, which sued the DOL in April for declining to turn over companies’ workforce demographic data in response to a Freedom of Information Act request. The businesses include Gilead Sciences Inc., Docusign Inc., and Oracle America Inc.

The decision is the first to require the Labor Department to disclose employers’ information following a June U.S. Supreme Court ruling in Food Marketing Institute v. Argus Leader Media. In that case, the justices blocked the release of Supplemental Nutrition Assistance program redemption information for individual grocers, broadening when a FOIA exemption shields “commercial or financial” information that’s considered “privileged or confidential.”

The Dec. 10 ruling could have ramifications for other parties seeking more information on the diversity makeup of top companies in the U.S., and “blows a gaping hole” in the FOIA exemptions federal contractors have relied on to keep that data private, said former acting Solicitor of Labor David Fortney. He’s now a management attorney and co-founder of FortneyScott.

“This decision is contrary to general business standards and practices, which typically retain employees’ personal information on a confidential basis,” Fortney said.

Journalism advocacy groups, however, praised Westmore’s ruling.

The decision provides clarity for third parties looking to access company data through FOIA requests, and was “the right decision” when considering the FOIA exemption the DOL was attempting to employ, said Adam Marshall, an attorney at the Reporters Committee for Freedom of the Press. The committee filed an amicus brief in the case.

Information Wasn’t ‘Commercial’

The Equal Employment Opportunity Commission has collected and shared with the DOL an annual diversity report of employees, broken down by race, sex and ethnicity, for more than 50 years. The EEOC is required to keep the data confidential, but the public can request the data via a FOIA request to the Labor Department. The report is known as the EEO-1.

In the FOIA case against the Labor Department, agency attorneys argued that the contractors’ diversity data is commercial and “could cause financial harm to the companies” if released. Westmore disagreed.

“Essentially, the Government is asking the Court find exempt any statistical information pertaining to employees simply because the business is a commercial enterprise,” Westmore wrote in the opinion. “This expansive interpretation has been rejected.”

Argus Leader Test

The Supreme Court case may have set the bar higher to access data from federal agencies, but it established several tests agencies must still meet if they wish to preclude data from disclosure. Those tests weren’t met in this case, said Victoria Baranetsky, the general counsel at the Center for Investigative Reporting.

“The records weren’t commercial, they weren’t confidential, and the government hadn’t made any assurance of confidentiality,” she said. “We were very impressed by the court to see through that.”

Fortney said if the EEOC were to release this data, instead of the Labor Department, it would be a criminal violation under Title VII of the 1964 Civil Rights Act.

“Fundamentally, these conflicting outcomes should not occur for Title VII data that the government requires to be collected, and this decision may warrant a congressional reversal,” he said.

The DOL has 60 days to turn over the data unless it appeals the ruling.

The case is Ctr. for Investigative Reporting v. DOL, 2019 BL 474411, N.D. Cal., 4:19-cv-01843, Opinion 12/10/19.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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