Texas v. EEOC, No. 21-194, 2022 WL 4835346 (N.D. Tex. Oct. 1, 2022) (Kacsmaryk, J.)

Texas v. EEOC, No. 21-194, 2022 WL 4835346 (N.D. Tex. Oct. 1, 2022) (Kacsmaryk, J.)

Re:  Argument that defendant failed to proactively post guidance records concerning prohibition on sexual orientation and gender identity discrimination in employment

Disposition:  Denying, in pertinent part, defendant’s motion for summary judgment; granting, in pertinent part, plaintiff’s cross-motion for summary judgment

• Proactive Disclosures:  The court relates that “FOIA requires agencies to ‘separately state and currently publish in the Federal Register for guidance of the public . . . substantive rules of general applicability adopted as authorized by law.’”  “Defendants do not dispute they did not publish the Guidances in the Federal Register.”  “Defendants instead resort to arguments that the Guidances are not substantive rules, an argument the Court finds unpersuasive.”  “But even if the Guidances were not substantive rules, FOIA’s publication requirement also applies to ‘statements of general policy or interpretations of general applicability formulated and adopted by the agency.’”  “Either way, the law requires the Guidances to be published in the Federal Register.”