As we’ve been discussing, now is the time for employers to be filing their annual EEO-1 reports. Coincidentally, and perhaps not un-intentionally, Public Citizen, a non profit advocacy group is also using this time to sue OFCCP around its practices of withholding information involving employers’ EEO-1 reports.
On February 26, Public Citizen filed suit in Washington D.C. District Court claiming that OFCCP improperly denied its Freedom of Information Act (FOIA) requests for information on who is looking into Employer EEO-1 data.
FOIA requires federal government agencies to disclose certain information under their control. FOIA requests are subject to a number of exemptions that protect the release of private, classified, or personal data based upon different rationales. Typically when we see FOIA requests involving OFCCP and EEO-1 reports, the requests are seeking release of EEO-1 data for specific employers.
Interestingly, Public Citizen’s lawsuit is not based upon accessing the substantive information contained in the EEO-1 Reports rather, it is seeking information on who else is submitting FOIA requests to try to access employer EEO-1 data and for what purposes these other parties are seeking the information. In this case, OFCCP partially denied the Plaintiff’s FOIA request based upon its supposed policy of withholding information regarding “open” (ongoing) FOIA requests.
“OFCCP advised that, as a matter of policy, it withholds all records related to “open” FOIA requests on the theory that they fall within the scope of FOIA exemption 7.
Exemption 7 of FOIA allows government agencies to deny release of information if releasing the information “could reasonably be expected to interfere with law enforcement proceedings.” The complaint in this case contends that the processing of FOIA requests by the Agency is not any kind of law enforcement proceeding and therefore violates the FOIA statute.
It will be interesting to see how OFCCP responds and whether they will ultimately be required to disclose the information.