Compliance Stuff

In a ruling significant to federal contractors and government transparency advocates alike, the U.S. Court of Appeals for the Ninth Circuit has affirmed a district court order requiring the U.S. Department of Labor (DOL) to disclose thousands of EEO-1 Type 2 (consolidated) reports submitted by federal contractors, rejecting the agency’s attempt to withhold the reports under the Freedom of Information Act’s (FOIA) Exemption 4. Quick Hits The Ninth Circuit ruled that EEO-1 Type 2 workforce demographic data is not protected “commercial” information under FOIA Exemption 4 and must be disclosed. For contractors that objected, contending the reports contained confidential commercial information, the reports are now likely subject to disclosure; the court did not address other objections based on contractor status or jurisdiction. The decision applies only to historical reports submitted to the DOL from 2016 to 2020 in response to FOIA requests by the Center for Investigative Reporting, but t...

  The Freedom of Information Act (“FOIA”) is often seen as just a transparency tool. But for federal contractors, FOIA can pose real risks to confidential proprietary data. Recent updates from the Department of Justice (“DOJ”) and pending litigation over contractor-submitted workforce reports make it clear that FOIA Exemption 4, which protects the disclosure of any confidential commercial or financial information, safeguards are stronger than ever, but only if you know how to use them. This January, the DOJ updated its  FOIA Guide  to clarify how Exemption 4 applies post- Food Marketing Institute v. Argus Leader Media.  588 U.S. 427 (2019). In the  Food Marketing Institute  case, the Supreme Court held that proprietary information can be withheld if it is both customarily and treated as private by the owner and was submitted to the government with an expectation of confidentiality.  Id . at 440. There is no longer a need to show  substantial compe...