As we previously reported, in 2019 Will Evans from The Center for Investigative Reporting (CIR) submitted a FOIA request to OFCCP seeking all Type 2 Consolidated EEO-1 Reports filed by federal contractors from 2016-2020. In response to the request, OFCCP published notice in the Federal Register pursuant to the Freedom of Information Act notifying contractors how they could submit objections to the release of their EEO-1 Reports. Contractors were given until November 19, 2022 in which to make their individualized arguments as to why their EEO-1 reports were exempt from release. Once received OFCCP was to undertake the process of determining which reports to release in response to the FOIA request.

On November 15, 2022, growing impatient with OFCCP’s apparent lack of progress of reviewing and responding to the request, CIR filed a complaint in the Northern District of California alleging OFCCP violated FOIA by not responding to CIR’s FOIA request within 20 business days. The complaint seeks injunctive relief ordering the release of the EEO-1 Reports within 20 days of the Court’s order on the matter.

According to the complaint, OFCCP was previously in communication with Mr. Evans, indicating the Agency “intends to release to [CIR] the names of those federal contractors that objected under an applicable FOPIA exemption and whose data was removed from public release.” At the time of the filing, CIR reported it had not received any such list, nor had it received any reports, including those from organizations who consented to disclosure or waived their right to withholding by not filing objections.

It remains to be seen whether the court will summarily order disclosure of the reports or if it will undertake a review of the case on the merits, including a review of the individualized basis on which each contractor argued its reports were protected from disclosure.

The Department of Labor has not yet responded to the complaint. We are monitoring the case and will alert with any further updates.