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The Center for Investigative Reporting v. U.S. Department of Labor

United States District Court, N.D. California

December 10, 2019

THE CENTER FOR INVESTIGATIVE REPORTING, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF LABOR, Defendant.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 24, 29

          KANDIS A. WESTMORE, UNITED STATES MAGISTRATE JUDGE

         On 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.

         On 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.

         I. BACKGROUND

         Plaintiff 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. ¶ 15.)

         On 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.)

         Companies 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 Filers, https://www.eeoc.gov/employers/eeo1survey/factsheetfilers.cfm (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), https://www.eeoc.gov/employers/eeo1survey/upload/compfiling-multi.pdf (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.)

         The 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.)

         On 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.)[1] 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.)

         On 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.)

         By May 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.

         On 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.)

         On 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.)

         On 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.)

         On 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.)

         On 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.)

         II. LEGAL STANDARD

         A. The Freedom of Information Act ...


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