Federal Contractor Watchdog Sued Over FOIA Documents Policy

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By Porter Wells

A Labor Department subagency’s alleged office policy of using law-enforcement exemptions to withhold requested documents from outside parties has put it at odds with a public advocacy group, which filed a lawsuit over the matter on Feb. 26.

The DOL’s Office of Federal Contract Compliance Programs is already dealing with complaints that it should be more transparent in its expectations and audits of federal contractor facilities as it carries out its mandate to enforce compliance with certain equal employment opportunity laws.

Public Citizen Inc., a nonprofit public interest advocacy and litigation organization, says that it filed Freedom of Information Act requests with the OFCCP to obtain copies of FOIA requests made by other parties for EEO-1 reports as well as any agency correspondence that followed those requests.

EEO-1 reports are completed by private employers to provide the government with demographic data about their workforces. FOIA requires disclosure of documents by the federal government, subject to exemptions.

Public Citizen was “requesting the FOIA correspondence to ensure we had a full understanding of who obtains EEO-1 reports and for what purposes,” Adam Pulver, an attorney at Public Citizen Litigation Group, told Bloomberg Law.

The OFCCP supplied most of the documents requested by Public Citizen but withheld documents on open FOIA requests, citing certain exemptions allowed for law-enforcement records or investigations. Public Citizen says that it telephoned the office and was told that “as a matter of policy, it withholds all records related to ‘open’ FOIA requests on the theory that they fall within the scope of FOIA exemption 7.”

Public Citizen takes issue with that purported policy because, though the OFCCP does enforce certain federal laws, its FOIA requests were to obtain documents related to processing other FOIA requests. “Agency processing of a FOIA request is not an enforcement proceeding” nor is it a “law enforcement investigation or prosecution,” the complaint argues.

The purpose of the lawsuit is “to obtain the information to help people understand the usefulness of the data collected by the government on EEO-1 reporting forms,” Pulver told Bloomberg Law. “And the OFCCP’s policy of using a law enforcement exemption to withhold FOIA documents is wrong.”

A Labor Department spokesperson said the DOL wouldn’t comment on open matters in litigation.

The case is Public Citizen, Inc. v. Dept. of Labor, et al., D.D.C., No. 1:18-cv-00433, complaint filed 2/26/18.

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