United States District Court, N.D. California
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 24, 29
A. WESTMORE, UNITED STATES MAGISTRATE JUDGE
August 23, 2019, the U.S. Department of Labor filed a motion
for summary judgment on the grounds that the Government was
justified in withholding documents under the Freedom of
Information Act's Exemption 4. On September 30, 2019,
Plaintiffs, The Center for Investigative Reporting and Will
Evans, filed a cross-motion for summary judgment.
December 5, 2019, the Court held a hearing, and after careful
consideration of the parties' arguments and the
applicable legal authority, for the reasons set forth below,
DENIES Defendant's motion for summary judgment, and
GRANTS Plaintiffs' cross-motion for summary judgment.
the Center for Investigative Reporting (“CIR”) is
a nonprofit, investigative news organization that publishes
Reveal, an online news site, and has a weekly public
radio show with approximately one million listeners per week.
(Compl., Dkt. No. 1 ¶ 13.) Plaintiff, Will Evans, is a
staff reporter for Reveal and an employee of CIR.
(Compl. ¶ 14.) Defendant U.S. Department of Labor
(“DOL”) oversees the Office of Federal Contract
Compliance Programs (“OFCCP”). (Compl. ¶
January 4, 2018, Plaintiffs submitted a Freedom of
Information Act (“FOIA”) request to DOL's
OFCCP seeking disclosure of federal contractors'
employment diversity reports (known as EEO-1 reports).
(See Compl. ¶ 2; Decl. of D. Lissette
Geán, “Geán Decl., ” Dkt. No. 24-11
at ¶ 13, Ex. 1.) The request explicitly sought the 2016
EEO-1 Consolidated Report (Type 2) for 55 named companies.
(Geán Decl. ¶ 13.)
with 50 or more employees that contract with the federal
government must submit annual reports using Standard Form
100, commonly known as “EEO-1 report, ” to the
Joint Reporting Committee (“JRC”). 41 C.F.R.
§ 60-1.7(a). Companies that do business at two or more
physical addresses (i.e. establishments) must file an EEO-1
Consolidated Report (Type 2) to that web portal. U.S. Equal
Emp't Opportunity Comm'n, Fact Sheet for EEO-1 Survey
(last visited Dec. 4, 2019). EEO-1 Type 2 reports require
companies to report the total number of employees across all
their establishments by race/ethnicity, gender, and job
category. U.S. Equal Emp't Opportunity Comm'n,
Memorandum from EEO-1 Joint Reporting Committee on Computer
Printed EEO-1 Reports- Required Format (Rev 3/2007) to
Multi-establishment Private Employers (July 2007),
(last visited Dec. 4, 2019). These reports help OFCCP monitor
the contracting companies' compliance with Executive
Order No. 11, 246 which prohibits employment discrimination
by government contractors. (Geán Decl. ¶ 5.)
Equal Employment Opportunity Commission (“EEOC”)
collects similar data for employers with 100 or more
employees. (Geán Decl. ¶ 8.) To avoid duplication
of efforts and reduce the administrative burden on companies,
EEOC and OFCCP formed the JRC to administer the EEO-1
reporting system in a manner that establishes a single data
collection to meet the statistical needs of both agencies.
See Id. The JRC web portal is managed by the EEOC,
which collects the information and shares with OFCCP the
reports from the companies subject to the OFCCP's
jurisdiction. (Geán Decl. ¶ 9.)
March 13, 2018, then-Special Assistant to the Deputy
Director, D. Lissette Geán, informed Plaintiffs that
OFCCP identified only 36 of the named 55 companies as federal
contractors subject to OFCCP's jurisdiction. (Geán
Decl. ¶ 15, Ex. 3.) On March 14, 2018, Ms. Geán,
notified those 36 federal contractors of the plaintiffs'
FOIA request for their EEO-1, Type 2 information.
(Geán Decl. ¶ 16.) The notice was sent out
pursuant to the notice requirement for confidential
commercial information as described in DOL's duly
promulgated regulation, 29 C.F.R. § 70.26. (Geán
Decl. ¶ 16.) The letters informed the companies that
they had 30 days from receipt of the letter to object in
writing, and that their failure to respond would result in
the release of their EEO-1, Type 2 data to Plaintiffs.
(Geán Decl. ¶¶ 17-19, Ex. 4.)
April 18, 2018, Ms. Geán sent a second notice to
submitters who had not objected within the initial 30 days.
(Geán Decl. ¶ 20, Ex. 5.) The April 18, 2018
letters referenced the March 14, 2018 letters, and informed
those submitters that if they failed to object by close of
business on May 31, 2018, their EEO-1 Type 2 data will be
released to the plaintiff-requesters. (Geán Decl.
¶ 21, Ex. 5.) Also on April 18, 2018, Ms. Geán
separately informed Plaintiffs that, as of the date of that
letter, 14 of the 36 companies objected to the release of
their data on the grounds of FOIA Exemption 4. (Geán
Decl. ¶ 22, Ex. 6.)
31, 2018, a total of 20 of the 36 companies submitted written
objections to DOL. (Geán Decl. ¶ 23.) On April
18, 2018 and on July 5, 2018, DOL sent each of the 20
objecting submitters a letter informing them that DOL
“concurred with their assertions that their EEO-1
reports were exempt from mandatory disclosure pursuant to
Exemption 4 of FOIA.” (Geán Decl. ¶ 24, Ex.
7.) As such, DOL informed these objectors that it would not
release their EEO-1 Type 2 data to Plaintiffs. Ids.
August 14, 2018, Ms. Geán, sent a letter to Plaintiffs
confirming that one of companies in the original FOIA
request, Trimble Navigation, had been removed from the
request. (Geán Decl. ¶ 25, Ex. 8.) In addition,
by the date of the letter, Ms. Geán informed
Plaintiffs that 15 submitters had not objected to the release
of their EEO-1 Type 2 data. (Geán Decl. ¶ 26.)
Subsequently, on August 16, 2018, via e-mail, OFCCP released
the EEO-1 Type 2 data for those 15 submitters who failed to
timely object to the release of their EEO-1 data by May 31,
2018. (Geán Decl. ¶ 27, Ex. 9.)
February 22, 2019, OFCCP informed Plaintiffs that it would
delay issuing a final response to this FOIA request pending
the outcome of the Supreme Court decision in Argus
Leader. (Geán Decl. ¶ 28, Ex. 10.)
March 1, 2019, Plaintiffs submitted an administrative appeal
pursuant to 29 C.F.R. § 70. (Geán Decl. ¶
29, Ex. 11.) On March 21, 2019, DOL acknowledged receipt of
the appeal. (Geán Decl. ¶ 30.)
April 9, 2019, Plaintiffs filed this action. After the case
was filed, additional companies decided to release the
information. (Geán Decl. ¶ 32.) As a result, the
pending motions only pertains to DOL's decision to
withhold the EEO-1 Type 2 data for the following companies:
Xilinx, Applied Materials, Inc., Equinix, Gilead Sciences,
Inc., Synopsys, Inc., Docusign, Inc., Agilent Technologies,
Box, and Oracle America, Inc., and Fitbit, Inc. (Def.'s
Mot. at 6.)
August 23, 2019, Defendant filed a motion for summary
judgment. (Def.'s Mot., Dkt. No. 24.) On September 30,
2019, Plaintiffs filed an opposition to the motion for
summary judgment and cross-motion for summary judgment.
(Pls.' Opp'n, Dkt. No. 29.) Also on September 30,
2019, the Reporters Committee for Freedom of the Press filed
an amicus curiae brief. (Amicus Br., Dkt. No. 28-1.) On
October 28, 2019, Defendant filed an opposition to the
cross-motion and a reply in support of its motion for summary
judgment. (Def.'s Reply, Dkt. No. 34.) On November 12,
2019, Plaintiffs filed a surreply to Defendant's motion
for summary judgment and a reply in support of the
cross-motion. (Pl.'s Surreply, Dkt. No. 35.)
The Freedom of Information Act ...