Public Citizen v. Department of Labor and Office of Federal Contract Compliance Programs

In September 2017 and January 2018, Public Citizen submitted Freedom of Information Act requests to the Department of Labor, seeking copies of correspondence relating to FOIA requests for certain forms referred to as “EEO-1 Reports” obtained by DOL’s Office of Federal Contract Compliance Programs (OFCCP). These reports are submitted by contractors with the federal government, and contain demographic information about their workforces. In responding to both requests, OFCCP withheld certain responsive documents on the grounds that documents relating to open FOIA requests constitute “law enforcement records” and are exempt from disclosure from FOIA under exemption 7(a) and 7(e).  OFCCP further stated that this was a policy of the agency. After waiting months for a decision on its appeal, Public Citizen filed suit seeking disclosure of the requested records and that OFCCP’s policy be declared unlawful and struck down.

In April 2018, Public Citizen and DOL signed a settlement agreement.  Under the agreement, DOL acknowledged that the withholding of the documents at issue was improper, that records concerning the processing of FOIA requests—including FOIA requests themselves and communications between federal agencies and FOIA requesters relating to the requests—are not compiled for “law enforcement purposes” under 5 U.S.C. 552(b)(7) and that FOIA Exemption 7 is not generally a proper ground for withholding such records.