Last week, the Cyberlaw Clinic filed an amicus brief in the Ninth Circuit case Center for Investigative Reporting v. United States Department of Labor (Docket No. 24-880). The Clinic represented organizational amici Knowledge Ecology International (KEI) and Universities Allied for Essential Medicines (UAEM), as well as individual amici Dr. Christopher J. Morten and Dr. Reshma Ramachandran. The brief supports the Center for Investigative Reporting (CIR) in its third round of litigation over the Department of Labor’s EEO-1 Reports. Amici wrote to emphasize the importance of transparency in public-private interactions, not just for reporting, but also for publicly beneficial research.
This case marks the third time CIR has requested EEO-1 data about federal contractors under the Freedom of Information Act (FOIA), and the third time that the Department of Labor (DOL) has refused to disclose such information. The two previous suits ended in a settlement for disclosure and a court order for disclosure, respectively. Nevertheless, the DOL maintains that the EEO-1 data is exempt under Exemption 4 to the FOIA. Exemption 4 covers “trade secrets and commercial or financial information” that is “privileged or confidential.” The Northern District of California held that the DOL failed to establish that the EEO-1 Reports were commercial, and this did not address the confidentiality prong or the general requirement that the agency must show that disclosure would result in a reasonably foreseeable harm. The DOL appealed to the Ninth Circuit.
In their brief, amici point to the vast number of interactions that take place between public and private entities every day. These interactions flow both ways: sometimes, the government obtains products or services from private contractors; other times, the government is actively regulating a private industry. If all of these interactions were exempt from FOIA, the public would miss out on critical information about government spending, regulatory capture, and corporate malfeasance. Amici‘s own research into government regulation and spending in the pharmaceutical and healthcare sectors – which revealed serious issues and led to tangible reform – would not have been possible under the DOL’s reading of Exemption 4.
Fortunately, as the brief points out, the language of the statute, relevant case law, and legislative history all support a narrow reading of Exemption 4, under which an agency must prove a significant connection to commercial activity, actual confidentiality, and foreseeable harm to a financial interest. Importantly, Exemption 4 was never meant to shield public or private actors from embarrassment or criticism as a result of transparency. In fact, revealing the inefficiencies, mistakes, and misconduct are at the heart of FOIA’s overall purpose: shedding light on the functioning of our federal government.
Summer 2024 Cyberlaw Clinic interns Morgan McMillan and Eve Zelickson worked on the brief, supervised by Wendy Chu and Mason Kortz. The Clinic looks forward to Ninth Circuit’s decision in this case.
Image Land Records Catalog, courtesy user MarkBuckawicki.