Skip to content

Case Detail

[Subscribe to updates]
Case TitleThe Center for Investigative Reporting et al v. U.S. Department of Labor
DistrictNorthern District of California
CityOakland
Case Number4:2019cv01843
Date Filed2019-04-05
Date Closed2019-12-10
JudgeMagistrate Judge Kandis A. Westmore
PlaintiffThe Center for Investigative Reporting
PlaintiffWill Evans
Case DescriptionWill Evans, a reporter for the Center for Investigative Reporting, submitted a FOIA request to the Department of Labor for records concerning 2016 EEO-1 Consolidated Reports for 55 companies. The agency acknowledged receipt of the request and provided an interim response. However, the agency subsequently told CIR that it was delaying its response until the Supreme Court ruled in FMI v. Argus Leader Media, dealing with the standard for determining competitive harm under Exemption 4 (confidential business information). CIR filed an administrative appeal, but after hearing nothing further from the agency, CIR filed suit.
Complaint issues: Litigation - Attorney's fees, Failure to respond within statutory time limit

DefendantU.S. Department of Labor
DefendantReporters Committee for Freedom of the Press
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Opinion/Order [30]
Opinion/Order [31]
Opinion/Order [33]
Opinion/Order [39]
Opinion/Order [42]
Opinion/Order [52]
FOIA Project Annotation: A federal court in California has ruled that the Department of Labor has not shown that EEO-1 reports requested by the Center of Investigative Reporting can be withheld under Exemption 4 (confidential business information), even after the Supreme Court, in Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), replaced the substantial competitive harm test with a customarily confidential standard. In fact, the CIR litigation was stayed by the district court at the request of the Labor Department until the Supreme Court ruled in Argus Leader. CIR reporter Will Evans asked for federal contractors' employment diversity reports, known at EEO-1 reports, for 55 named companies. Labor told CIR that only 36 of the named 55 companies were federal contractors. Because the EEO-1 reports contained confidential business information, the agency sent pre-disclosure notification letters to all 36 companies. Twenty companies responded to the pre-disclosure notification letters, claiming they considered the reports to contain confidential business information. CIR filed an administrative appeal and filed suit a month later. By the time the court ruled, the disputed records focused on Labor's decision to withhold 10 EEO-1 reports. Magistrate Judge Kandis Westmore explained initially that "there is no salary information, sales figures, departmental staffing levels, or other identifying information in these reports. Rather, the diversity reports merely disclose the workforce composition to ensure compliance with Executive Order 11,246 which prohibits discrimination by federal contractors." The agency argued that the information was commercial and provided declarations from several submitters to support its claim. Noting that the declarations for various businesses frequently contained nearly verbatim language supporting the commercial nature of the information, Westmore observed that "the EEO-1 form does not ask submitting companies to explain how resources are allocated across a company's 'segments.' Rather, the report is organized by job category, such as 'Professionals,' 'Sales Workers,' 'Operatives,' 'Craft Workers,' 'Laborers and Helpers,' etc. It does not request demographic information by division, department, or 'segment.' The data sought is companywide." Westmore pointed out that other declarations argued that disclosure would allow competitors to lure away skilled workers. Again, Westmore expressed skepticism, noting that she found "the claim that the EEO-1 reports would make it easier for competitors to lure away talent dubious, since the job categories are so general. . .Since there is no breakdown by department, the total number of professionals reported not only includes the company's computer programmers and engineers, but also its lawyers and accountants." Labor also argued that disclosure would make it more difficult for contractors to recruit needed workers. Pointing out that the information contained in the EEO-1 reports was far too general to support such a claim, Westmore observed that "essentially, the Government is asking the Court to find exempt any statistical information pertaining to employees simply because the business is a commercial enterprise. This expansive interpretation has been rejected." Having found that the agency had not shown that the EEO-1 reports contained commercial information, Westmore next considered whether they were confidential. Westmore noted that in Argus Leader, the Supreme Court explained that "uncontested testimony established that the information was not disclosed, nor made 'publicly available in any way,' suggested that it was confidential." She pointed out that here at least one company had published data from its EEO-1 report in its annual report. Unlike her district court colleague, Judge William Allsup, who found that the inclusion of a provision in the 2016 FOIA Improvement Act extending the foreseeable harm test to all exemptions did not undermine Argus Leader, Westmore noted that "the FOIA request in Argus Leader was filed before FIA was enacted, so the foreseeable harm was not applicable. In fact, the Supreme Court did not address the validity of the foreseeable harm standard. Today, FIA codifies the requirement that the agency articulate a foreseeable harm to an interest protected by an exemption that would result from disclosure. Here, the Government does not attempt to make such a showing, and instead relies on Argus Leader as the reason why it need not do so." Westmore also found that the agency had not considered segregability. Sending that issue back to the agency, she pointed out that "the Government is free to look into the feasibility of segregation; however, it had an obligation to segregate and release nonexempt information when the request was made, which it did not do."
Issues: Exemption 4 - Confidential business information
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2019-04-051COMPLAINT against U.S. Department of Labor ( Filing fee $ 400, receipt number 0971-13236002.). Filed byThe Center for Investigative Reporting. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Civil Cover Sheet)(Baranetsky, Diana) (Filed on 4/5/2019) (Entered: 04/05/2019)
2019-04-052Proposed Summons. (Baranetsky, Diana) (Filed on 4/5/2019) (Entered: 04/05/2019)
2019-04-053Certificate of Interested Entities by The Center for Investigative Reporting (Baranetsky, Diana) (Filed on 4/5/2019) (Entered: 04/05/2019)
2019-04-054Case assigned to Magistrate Judge Kandis A. Westmore. Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening. Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 4/19/2019. (bwS, COURT STAFF) (Filed on 4/5/2019) (Entered: 04/05/2019)
2019-04-055CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Will Evans, The Center for Investigative Reporting.. (Baranetsky, Diana) (Filed on 4/5/2019) (Entered: 04/05/2019)
2019-04-056Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 7/2/2019. Initial Case Management Conference set for 7/9/2019 01:30 PM. (jjbS, COURT STAFF) (Filed on 4/5/2019) (Entered: 04/08/2019)
2019-04-087**DISREGARD, SEE DOCKET NO. 9 ** Summons Issued as to U.S. Department of Labor. (jjbS, COURT STAFF) (Filed on 4/8/2019) Modified on 4/9/2019 (jjbS, COURT STAFF). (Entered: 04/08/2019)
2019-04-088CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Will Evans.. (Baranetsky, Diana) (Filed on 4/8/2019) (Entered: 04/08/2019)
2019-04-099Summons Issued as to U.S. Department of Labor. (jjbS, COURT STAFF) (Filed on 4/9/2019) (Entered: 04/09/2019)
2019-04-0910CERTIFICATE OF SERVICE by Will Evans, The Center for Investigative Reporting (Baranetsky, Diana) (Filed on 4/9/2019) (Entered: 04/09/2019)
2019-04-1811NOTICE of Appearance by Ellen London (London, Ellen) (Filed on 4/18/2019) (Entered: 04/18/2019)
2019-05-0612STIPULATION to Extend Time to Answer or Otherwise Respond to Complaint filed by U.S. Department of Labor, The Center for Investigative reporting and Will Evans. (London, Ellen) (Filed on 5/6/2019) Modified on 5/6/2019 (jmlS, COURT STAFF). (Entered: 05/06/2019)
2019-05-0713CLERK'S NOTICE Re: Consent or Declination: Defendant shall file a consent or declination to proceed before a magistrate judge. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. Consent/Declination due by 5/21/2019. (kcS, COURT STAFF) (Filed on 5/7/2019) (Entered: 05/07/2019)
2019-05-0814CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by U.S. Department of Labor.. (London, Ellen) (Filed on 5/8/2019) (Entered: 05/08/2019)
2019-05-2915Defendant's ANSWER to Complaint byU.S. Department of Labor. (London, Ellen) (Filed on 5/29/2019) (Entered: 05/29/2019)
2019-06-1816ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Baranetsky, Diana) (Filed on 6/18/2019) (Entered: 06/18/2019)
2019-06-1917ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (London, Ellen) (Filed on 6/19/2019) (Entered: 06/19/2019)
2019-06-2718STIPULATION WITH PROPOSED ORDER to Adjourn Case Management Deadlines filed by U.S. Department of Labor, The Center for Investigative Reporting and Will Evans. (London, Ellen) (Filed on 6/27/2019) Modified on 6/28/2019 (jmlS, COURT STAFF). (Entered: 06/27/2019)
2019-07-0119Order by Magistrate Judge Kandis A. Westmore granting 18 Stipulation to Adjourn Case Management Deadlines. Status Report due by 7/17/2019.(dtmS, COURT STAFF) (Filed on 7/1/2019) (Entered: 07/01/2019)
2019-07-1720STIPULATION WITH PROPOSED ORDER to Set Summary Judgment Schedule filed by U.S. Department of Labor, The Center for Investigative Reporting, and Will Evans. (London, Ellen) (Filed on 7/17/2019) Modified on 7/18/2019 (jjbS, COURT STAFF). (Entered: 07/17/2019)
2019-07-1821Order by Magistrate Judge Kandis A. Westmore granting as modified 20 Stipulation Setting Summary Judgment Briefing Schedule.(dtmS, COURT STAFF) (Filed on 7/18/2019) (Entered: 07/19/2019)
2019-07-19Set Deadlines/Hearings: Dispositive Motion due by 8/16/2019. Response/Cross motion due by 9/16/2019. Response/Reply due by 9/30/2019. Reply due by 10/14/2019. Motion Hearing set for 11/7/2019 01:30 PM before Magistrate Judge Kandis A. Westmore. (dtmS, COURT STAFF) (Filed on 7/19/2019) (Entered: 07/19/2019)
2019-08-0622STIPULATION WITH PROPOSED ORDER to Set Summary Judgment Briefing Schedule filed by U.S. Department of Labor, The Center for Investigative Reporting, and Will Evans. (London, Ellen) (Filed on 8/6/2019) Modified on 8/7/2019 (jjbS, COURT STAFF). (Entered: 08/06/2019)
2019-08-0623Order by Magistrate Judge Kandis A. Westmore granting 22 Stipulation Setting Summary Judgment Briefing Schedule. Dispositive Motion due by 8/23/2019. Response/Cross Motion due by 9/23/2019.Response due by 10/7/2019. Reply due by 10/21/2019. (dtmS, COURT STAFF) (Filed on 8/6/2019) (Entered: 08/08/2019)
2019-08-2324MOTION for Summary Judgment filed by U.S. Department of Labor. Motion Hearing set for 11/7/2019 01:30 PM before Magistrate Judge Kandis A. Westmore. Responses due by 9/23/2019. Replies due by 10/7/2019. (Attachments: # 1 Declaration of Tania Barros, # 2 Declaration of Julie Crane, # 3 Declaration of Kelly Kayser, # 4 Declaration of Mirelle King, # 5 Declaration of Sarah Lee, # 6 Declaration of Nancy Lewis-Treolo, # 7 Declaration of Dave Nickerson, # 8 Declaration of Natalie Speno, # 9 Declaration of Victoria Thrasher, # 10 Declaration of Mollie Wong, # 11 Declaration of D. Lissette Gean, # 12 Proposed Order)(London, Ellen) (Filed on 8/23/2019) (Entered: 08/23/2019)
2019-09-0325STIPULATION WITH PROPOSED ORDER filed by Will Evans, The Center for Investigative Reporting and U.S. Department of Labor. (Baranetsky, Diana) (Filed on 9/3/2019) Modified on 9/4/2019 (jjbS, COURT STAFF). (Entered: 09/03/2019)
2019-09-0426Order by Magistrate Judge Kandis A. Westmore granting 25 Stipulation Setting Summary Judgment Briefing Schedule.(dtmS, COURT STAFF) (Filed on 9/4/2019) (Entered: 09/04/2019)
2019-09-04Set/Reset Deadlines as to 24 MOTION for Summary Judgment . Responses due by 9/30/2019. Replies due by 10/21/2019. Motion Hearing set for 11/21/2019 01:30 PM before Magistrate Judge Kandis A. Westmore. (dtmS, COURT STAFF) (Filed on 9/4/2019) (Entered: 09/04/2019)
2019-09-3027NOTICE of Appearance by Townsend KatieLynn (KatieLynn, Townsend) (Filed on 9/30/2019) (Entered: 09/30/2019)
2019-09-3028MOTION to File Amicus Curiae Brief filed by Reporters Committee for Freedom of the Press. Responses due by 10/15/2019. Replies due by 10/22/2019. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(KatieLynn, Townsend) (Filed on 9/30/2019) (Entered: 09/30/2019)
2019-09-3029OPPOSITION/RESPONSE (re 24 MOTION for Summary Judgment ), and CROSS-MOTION for Summary Judgment filed byThe Center for Investigative Reporting. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Exhibit, # 6 Proposed Order)(Baranetsky, Diana) (Filed on 9/30/2019) Modified on 10/1/2019 (jjbS, COURT STAFF). (Entered: 09/30/2019)
2019-10-0430ORDER REGARDING UNUSABLE CHAMBERS COPIES re 29 OPPOSITION/RESPONSE (re 24 MOTION for Summary Judgment ) and Cross-Motion for Summary Judgment filed by The Center for Investigative Reporting. Plaintiffs shall provide a usable chambers copy of the exhibits and the corresponding declaration as described in this order, by 10/9/2019. Signed by Judge Kandis A. Westmore on 10/4/2019. (kawlc1, COURT STAFF) (Filed on 10/4/2019) (Entered: 10/04/2019)
2019-10-0831SECOND ORDER REGARDING UNUSABLE CHAMBERS COPIES re 29 OPPOSITION/RESPONSE (re 24 MOTION for Summary Judgment ) and Cross-Motion for Summary Judgment filed by The Center for Investigative Reporting. Plaintiffs shall provide a usable chambers copy of the exhibits and the corresponding declaration as described in this order, by 10/15/2019. Signed by Judge Kandis A. Westmore on 10/8/2019. (kawlc1, COURT STAFF) (Filed on 10/8/2019) (Entered: 10/08/2019)
2019-10-1132STIPULATION WITH PROPOSED ORDER to Set Summary Judgment Briefing Schedule filed by U.S. Department of Labor Will Evans, and The Center for Investigative Reporting. (London, Ellen) (Filed on 10/11/2019) Modified on 10/15/2019 (jjbS, COURT STAFF). (Entered: 10/11/2019)
2019-10-1833ORDER by Judge Kandis A. Westmore Granting 32 Stipulation to Set Summary Judgment Briefing Schedule. (ndrS, COURT STAFF) (Filed on 10/18/2019) (Entered: 10/18/2019)
2019-10-18Reset Deadlines/Hearings as to 24 MOTION for Summary Judgment and 29 Cross-Motion for Summary Judgment, See Docket No. 33 : Responses due by 10/28/2019; Replies due by 11/12/2019. and Motion Hearing set for 12/5/2019 01:30 PM before Magistrate Judge Kandis A. Westmore. (ndrS, COURT STAFF) (Filed on 10/18/2019) (Entered: 10/18/2019)
2019-10-2834OPPOSITION/RESPONSE to Cross-motion for Summary Judgment and Reply in Support of Motion for Summary Judgment (re 29 OPPOSITION/RESPONSE (re 24 MOTION for Summary Judgment ) and Cross-Motion for Summary Judgment ) filed by U.S. Department of Labor. (Attachments: # 1 Declaration Supplemental Declaration of D. Lissette Gen; Exhibit A - C)(London, Ellen) (Filed on 10/28/2019) Modified on 10/29/2019 (jjbS, COURT STAFF). (Entered: 10/28/2019)
2019-11-1235REPLY (re 29 OPPOSITION/RESPONSE (re 24 MOTION for Summary Judgment ) and Cross-Motion for Summary Judgment, 24 MOTION for Summary Judgment ) filed byThe Center for Investigative Reporting. (Attachments: # 1 Declaration, # 2 Exhibit)(Baranetsky, Diana) (Filed on 11/12/2019) (Entered: 11/12/2019)
2019-11-2636ORDER granting Motion to File Amicus Curiae Brief signed by Magistrate Judge Kandis A. Westmore: granting 28 Motion. (shyS, COURT STAFF) (Filed on 11/26/2019) (Entered: 11/26/2019)
2019-11-2637Statement of Recent Decision by U.S. Department of Labor. (Attachments: # 1 Exhibit A)(London, Ellen) (Filed on 11/26/2019) (Entered: 11/26/2019)
2019-12-0538Minute Entry for proceedings held before Magistrate Judge Kandis A. Westmore: Motion Hearing held on 12/5/2019 re 29 Cross-Motion for Summary Judgment and 24 MOTION for Summary Judgment . Court Reporter: Raynee Mercado. (dtmS, COURT STAFF) (Date Filed: 12/5/2019) (Entered: 12/05/2019)
2019-12-1039ORDER by Judge Kandis A. Westmore denying Defendant's 24 Motion for Summary Judgment; granting Plaintiffs' 29 Cross-Motion for Summary Judgment. (kawlc1, COURT STAFF) (Filed on 12/10/2019) (Entered: 12/10/2019)
2019-12-1040JUDGMENT. Signed by Judge Kandis A. Westmore on 12/10/19. (dtmS, COURT STAFF) (Filed on 12/10/2019) (Entered: 12/11/2019)
2019-12-2041STIPULATION WITH PROPOSED ORDER filed by U.S. Department of Labor, The Center for Investigative Reporting and Will Evans. (London, Ellen) (Filed on 12/20/2019) Modified on 12/23/2019 (jjbS, COURT STAFF). (Entered: 12/20/2019)
2019-12-2042ORDER by Judge Kandis A. Westmore granting 41 Stipulation to extend the Government's deadline to produce the documents at issue. (kawlc1, COURT STAFF) (Filed on 12/20/2019) (Entered: 12/20/2019)
Hide Docket Events
by FOIA Project Staff
Skip to toolbar