Ctr. for Investigative Reporting v. U.S. Dep’t of Labor, No. 22-07182, 2023 WL 8879244 (N.D. Cal. Dec. 22, 2023) (Alsup, J.)

Ctr. for Investigative Reporting v. U.S. Dep’t of Labor, No. 22-07182, 2023 WL 8879244 (N.D. Cal. Dec. 22, 2023) (Alsup, J.)

Re:  Requests for all EEO-1 reports submitted by all federal contractors from 2016 through 2020

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiffs’ motion for summary judgment

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court relates that “Defendant argues that disclosure of EEO-1 reports is prevented under Exemption 4 of FOIA and the Trade Secrets Act, 18 U.S.C. § 1905.”  “Plaintiffs, however, contend that defendant’s claims for Exemption 4 and the Trade Secrets Act are barred because these issues have already been litigated in Center for Investigative Reporting v. U.S. Department of Labor, 424 F. Supp. 3d 771 (N.D. Cal. 2019).”  The court holds that “[t]his order finds that plaintiffs are not permitted to bring a claim of offensive collateral estoppel against the government to prevent the relitigation of these issues.”  “The Supreme Court recognized that the government is not ‘“in a position identical to that of a private litigant,”’ in terms of the sheer number of cases the government files across the country, dwarfing even the most litigious private parties.”  “Further, government litigation often involves issues of public importance, where the government is the only appropriate party.”  “As such, defendant is not barred from raising the matter in this court and plaintiffs’ argument is rejected.”

• Exemption 4:  “[T]his order does not find that these EEO-1 reports are commercial in nature for the purpose of Exemption 4 of FOIA.”  The court relates that “Defendant maintains that EEO-1 reports are commercial in nature because they contain information about headcount totals and staffing levels across job occupation categories . . . .”  “Defendant also asserts that the demographic data in the report reveals the company’s diversity within its workforce which is also commercial . . . .”  “Plaintiffs argue that EEO-1 reports are not commercial because the information contained therein is too attenuated from the commercial aspects of business.”  First, the court finds that “[t]he EEO-1 form contains broadly sweeping categories such as ‘professionals’ and ‘senior officials’ which are to be used irrespective of relevant job categories that are found within any one industry.”  “As a result, the report cannot itself yield any commercial insight that is specific to the operations of the federal contractor.”  Additionally, the court finds that “aside from conclusory claims that these ten general job categories reveal the specific workforce structure of a specific company, the bellwether objectors provide no plausible factual basis to establish this argument.”  “One declaration, however, provided a non-conclusory basis for establishing that the EEO-1 report reveals the workforce structure of a company:  [the company] argues that its successful business model can be ascertained by looking at the ratio of security guard positions to client support positions . . . .”  “[The company] contends that its security guards are its main source of revenue, and that its staffing strategies would be revealed by looking at the ratio of security guards to non-security guards.”  “However, [the company] also explains that the most important financial metrics are established by how many hours a security guard worked at a customer’s site and the negotiated ‘bill rate’ . . . .”  “A third metric [the company] uses to determine their operating expenses is staffing costs.”  “To be clear, none of these three metrics are found in the EEO-1 report.”  “While the number of employees working at [the company] is no doubt relevant, it does not itself reveal the staffing strategies of the company without any of the other three aforementioned metrics.”  “In essence, [the company] is over-stating the contents of and the potential findings one could make using the EEO-1 report and therefore fails to establish the commercial nature of the data in the report itself.”
  
  “Second, defendant contends that the diversity data contained within EEO-1 reports is ‘inherently commercial,’ because it creates ‘business value . . . “that translates into a competitive advantage for firms”’. . . .”  The court finds that “[t]hese declarations posit a vague connection between the data and the commercial success of each company but do not demonstrate the inherently commercial nature of the diversity data.”  “Like names or birthdays, the demographic background of employees does not speak to the commercial contributions of a company’s workforce and cannot be imposed simply because the bellwether objectors deem it so.”
  
  “Lastly, defendant asserts that disclosing five years’ worth of information all at once may reveal insight into the company’s operations which would not be revealed by any single EEO-1 report . . . .”  “Because this order does not find that there is a commercial gain to be found in the headcount or demographic data within the EEO-1 report, so too does it not find a compounded effect by releasing five years’ worth of data to plaintiffs.”  “To be clear, it will be approximately eight years since the first FOIA request and almost four years since the most recent request.”  “Even if an objector could plausibly establish that five years’ worth of information would reveal commercial information, that data would probably be stale by the time it was disclosed.”
  
  “Because the EEO-1 reports are not commercial in nature, this order need not decide whether the information is confidential . . . .”
  
  The court relates that “Defendant also argues that EEO-1 reports are protected under the Trade Secrets Act because the report is ‘confidential statistical data’ under the plain meaning of the terms found in the Act.”  “This order is not convinced by defendant’s superficial argument that diversity data within an EEO-1 report is protected under the Trade Secrets Act.”  “Defendant’s contention that ‘confidential statistical data’ under the Trade Secrets Act is simply governed by the plain meaning of the terms, is made without any substantive support from caselaw and could possibly render the language of the Act meaningless.”
   
• Litigation Considerations, Relief:  The court holds that “plaintiffs’ motion for declaratory judgment is denied.”  The court relates that “Plaintiffs alleged in their cross-motion for summary judgment that defendant has failed to comply with FOIA by delaying disclosure of EEO-1 reports for a number of years.  The court finds that “[a]gencies are . . . statutorily required to provide timely determinations for each FOIA request made:  no later than thirty days after the request.”  “Therefore, this order finds that defendant did not provide plaintiffs with a timely determination following the first FOIA request.”  “For the same reason, this order finds that defendant did not provide timely determinations for the second and third FOIA requests.”  “However, a declaratory judgment is not always appropriate when the agency violates these time limits.”  “Contrary to plaintiffs’ assertion, this order finds that declaratory judgment is not appropriate here.”  “While defendant violated FOIA deadlines, this order does not find that defendant’s actions were ‘intentional, persistent, and extreme’ . . . .”  “This order recognizes the large scope of all four FOIA requests made to defendant and that defendant was tasked with producing five years’ worth of EEO-1 data, notifying 25,000 entities, and processing thousands of objections . . . .”
   
• Litigation Considerations, Adequacy of Search:  The court relates that “Plaintiffs allege that defendant incorrectly withheld 621 EEO-1 reports . . . .”  “Defendant contends that these reports were submitted by entities who were not federal contractors at the time of the reports and are therefore not within [defendant’s] jurisdiction . . . .”  “Plaintiffs assert that defendant is applying a narrow reading of the FOIA request [which] incorrectly excludes who is considered a federal contractor.”  “This disagreement over whether the submitter of these 621 reports were federal contractors or under the jurisdiction of [defendant] when the reports were submitted raises a genuine issue[] of material fact.”  “For this reason, plaintiffs’ cross-motion for summary judgment is denied.”