On July 30, 2025, the Ninth Circuit ruled that the U.S. Department of Labor (DOL)’s Office of Federal Contract Compliance Programs (OFCCP) must disclose federal contractor EEO-1 reports to the Center for Investigative Reporting (CIR), a non-profit news organization. The court decided that the data contained in the EEO-1 reports, including race, ethnicity, sex, and job category for all employees, does not constitute protected “trade secrets and commercial or financial information” under Exemption 4 of the Freedom of Information Act (FOIA). Unless there is a further appeal, previously withheld EEO-1 reports from 2016 through 2020 will be subject to disclosure. We have previously written about the litigation surrounding this FOIA demand from CIR, and those alerts can be found here and here.
Background
Federal contractors with 50 or more employees are generally required to submit annual EEO-1 Type 2 reports to the U.S. Department of Labor with information on the composition of their workforce, including race, ethnicity, sex, gender, and job category data. CIR submitted FOIA requests for EEO-1 reports filed between 2016 and 2020. The DOL determined the EEO-1 reports were protected from disclosure under Exemption 4 of FOIA, because they contained “trade secrets and commercial or financial information.” The DOL gave contractors notice and the opportunity to file a written objection to CIR’s requests and, ultimately, withheld 16,755 EEO-1 reports from 4,141 objecting contractors.
The Decision
CIR sued the DOL in the U.S. District Court for the Northern District of California to compel disclosure of all requested EEO-1 reports. The District Court held that the EEO-1 reports were not commercial information protected by Exemption 4 because the employee information within the reports is akin to employee background and does not speak to “commercial contributions” of the company’s workforce. The DOL appealed.
The Ninth Circuit affirmed the District Court’s ruling to compel disclosure. The court reasoned that for information to be “commercial” under Exemption 4, it must either:
- be “made to be bought and sold” or
- describe “the exchange of goods or services or the making of a profit.”
The court rejected the argument that demographic data contained in the EEO-1 reports was “commercial” because the reports were not created for commercial sale, nor did they reveal operational information such as pricing, contract terms, or profit margins that may be seen as commercial.
Implications for Federal Contractors
If the DOL does not appeal the Ninth Circuit’s decision, the OFCCP will be required to disclose previously withheld EEO-1 reports submitted between 2016 and 2020 that were withheld based on Exemption 4. The Ninth Circuit’s decision does not impact other FOIA objections, such as Exemption 1 for national security or Exemption 6 for unwarranted invasion of personal privacy. The Ninth Circuit’s decision also may not impact the federal government’s analysis of similar FOIA requests moving forward, because while the Ninth Circuit emphasized a preference for disclosure, particularly when the information withheld is not directly related to commercial activity, the current administration is neither a fan of the Ninth Circuit nor of unbridled disclosure. Nevertheless, federal contractors may be less confident now that confidential business information submitted to the DOL will be protected from public disclosure.
Federal contractors also should be aware that CIR has a pending FOIA request for disclosure of EEO-1 reports filed in 2021, and the arguments for and against disclosure generally are the same as those involving EEO-1 reports filed between 2016 and 2020.
Conclusion
Federal contractors who submitted reports between 2016 and 2020, or objected to the DOL’s disclosure of these reports, should be aware that their employee workforce demographics may become publicly available in the near future. It is highly recommended that contractors with concerns about public disclosure of their workforce demographic composition reach out to legal counsel for guidance.
