California Judge Orders Labor Department to Release Diversity Data Reports

OAKLAND, Calif. (CN) – The Department of Labor cannot withhold reports from a journalist with the Center for Investigative Reporting on the race and gender makeup of companies that contract with the federal government, a federal judge in California ruled Tuesday. 

Will Evans, a reporter who writes about workplace conditions for the CIR’s news site Reveal, requested federal contractors’ diversity data in January 2018. Known as EEO-1 reports, they contain information on employee gender, race/ethnicity and job positions and are required filings for companies with 50 or more employees who contract with the government. 

These reports help the labor department’s compliance arm ensure that contractors abide by an executive order prohibiting workplace discrimination. 

The Department of Labor had turned over the requested reports for the previous year after a lawsuit filed by the Center for Investigative Reporting. But in response to Evans’ identical request in 2018, it informed the nonprofit news organization that it was invoking Exemption 4 of the Freedom of Information Act, which protects business records containing trade secrets and commercial information as confidential.  

Then in February 2019, the Department of Labor’s compliance office said it would hold off on responding to the FOIA request as it awaited the Supreme Court’s decision in Food Marketing Institute v. Argus Leader Media, a case in which a South Dakota newspaper sought information from the U.S. Department of Agriculture about participants in the Supplemental Nutrition Assistance Program (SNAP). 

Written by Justice Neil Gorsuch, the Argus Leader decision held that “information communicated to another remains confidential whenever it is customarily kept private, or at least closely held, by the person imparting it.” 

The Department of Labor refused to turn over the reports, citing Argus Leader.

Evans and the Center for Investigative Reporting sued on April 9, 2019. While some companies ended up disclosing their information, Evans was still waiting on EEO-1 reports from Xilinx, Applied Materials, Equinix, Gilead Sciences, Synopsys, Docusign, Agilent Technologies, Box, Oracle, and Fitbit. 

On Tuesday, U.S. District Judge Kandis Westmore denied the government summary judgment, finding the requested reports do not contain commercial or financial information protected by FOIA’s Exemption 4. 

In her ruling, Westmore considered objections from several of the companies that the reports would reveal sensitive information about strategy and recruiting, creating “substantial competitive harm.” Westmore disagreed. 

“The court finds the claim that the EEO-1 reports would make it easier for competitors to lure away talent to be dubious, since the job categories are so general,” she said in her ruling.

Because she didn’t find the information to be of a commercial nature, Westmore said the Supreme Court’s ruling in Argus Leader does not apply. And even if the information were exempt as confidential, Westmore said the government failed to show how releasing the documents would cause any “foreseeable harm.”

“The decision Judge Westmore issued was terrific for press freedom on multiple fronts. I think it was a very well-reasoned opinion,” said Victoria Baranetsky, general counsel of the Center for Investigative Reporting, in a phone interview late Wednesday.  

“The records were not commercial, they were not confidential, and moreover, they did not meet the foreseeable harm test,” she added, noting that the latter was introduced by the FOIA Improvement Act of 2016.

Baranetsky said she believes this is the first case involving FOIA Exemption 4 where the judge ruled that the government failed to meet the foreseeable harm standard. 

“Argus Leader dismantled the harm requirement in Exemption 4 cases but here the judge ruled it’s absolutely still relevant,” she said.

The Department of Labor declined to comment on the ruling.

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