FOIA, EEO-1 reports, and federal contractors, oh my!

Employers are under increasing pressure to make public workforce diversity data. The press and other stakeholders are turning to the Freedom of Information Action (FOIA) to force the disclosure of such data by demanding employers' annual EEO-1 reports.

Employer protections

Under Exemption 4 of FOIA, the federal government may not disclose "commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C.S. § 552(b)(4). Although seemingly straightforward, that language has been the source of much dispute and confusion, as many courts have held that information should be deemed confidential under Exemption 4 only if it can be shown its disclosure would cause "substantial competitive harm."

Most recently, the U.S. Supreme Courts decision in Food Marketing Institute v. Argus Leader Media overruled the "substantial competitive harm" standard, providing employers greater protection against disclosure of confidential information.

Court rulings

The Supreme Court held that information provided to the government should be considered a "confidential" trade secret under FOIA Exemption 4—and therefore not subject to public disclosure—if it is "both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy." As a result, private companies, which are required to provide sensitive data to the government, breathed a sigh of relief that the information would not be made public.