Order to Disclose 75k EEO-1 Reports Stayed Pending OFCCP’s Appeal to the 9th Circuit

March 8, 2024 – On February 16, 2024, the United States District Court for the Northern District of California granted a temporary stay of the production of 75,000 EEO-1 Reports, pending resolution of the Office of Federal Contract Compliance Programs (OFCCP) appeal to the Ninth Circuit Court of Appeals.  As we previously reported, the district court originally ordered the OFCCP to produce the reports—which contain data about the gender, racial or ethnic background, and job categories of responding companies’ employees—in response to FOIA requests from the Center for Investigative Reporting.  Details of the underlying suit can be found here.

In an emergency motion requesting the stay, the OFCCP argued that “[t]he harm from compliance with the [district court’s] order is … irreparable [and] significant,” since the pending appeal presents “serious legal questions” that are unsettled in the Ninth Circuit.  The OFCCP claimed that it can “establish a probability of success” because, in its view, the trial court incorrectly evaluated the commercial nature of the data contained in the reports.  The OFCCP also argued that the district court erred in refusing to find that FOIA Exemption 4—which excuses mandatory disclosure for any commercial or financial information obtained from a person or by the government that is also privileged or confidential—applied to the responsive reports.

As a result of the district court’s order, the DOL will not be required to produce EEO-1 reports responsive to the subject FOIA requests.  We will continue to follow this issue and provide updates as appropriate.

Of course, if you have any questions about how this order may impact your business operations, please reach out to a Kullman Law attorney for assistance.

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