Case Document 1 Filed 04/02/18 Page 1 of 10 D. Victoria Baranetsky (SBN 311892) THE CENTER FOR INVESTIGATIVE REPORTING 1400 65th St, Suite 200 Emeryville, CA 94608 Telephone: (510) 809?3160 Fax: (510) 849-6141 vbaranetsky@revealnews.org Attorney for Plaintiffs UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION THE CENTER FOR INVESTIGATIVE Case No. REPORTING and WILL EVANS, COMPLAINT FOR INJUNCTIVE Plaintiffs, i RELIEF V. UNITED STATES DEPARTMENT OF LABOR, Defendant. INTRODUCTION 1. This is an action under the Freedom of Information Act 5 U.S.C. 552, for inj unctive and other appropriate relief. The Center for Investigative Reporting and Will Evans (collectively c?Plaintiffs?j seek processing and release of agency records requested from Defendant the United States Department of Labor 2. In August and December 2017, Plaintiffs submitted Freedom of Information Act requests (the ??Requests?) to Of?ce of Federal Contract Compliance Programs seeking disclosure of federal contractors? employment diversity reports submitted to OF CCP as well as copies of correspondence between OFCCP and federal contractors concerning the release of the forms. OFCCP issued a series of responses and denials withholding records under Exemption 4 and -1- COMPLAINT FOR INJUNCTIVE RELIEF Case Document 1 Filed 04/02/18 Page 2 of 10 Plaintiffs appealed. The agency has since failed to issue a response. 3. To date, Defendant has failed to comply with statutory deadlines and has improperly withheld records responsive to the Requests. 4. delay and improper withholding is of particular public concern because the requested forms contain statistics on employee diversity at various federal contractors in Silicon Valley. Diversity data is instrumental to ensuring that federal contractors diversify their workforces in compliance with the law. This is especially important in the technology sector which implicates the lives of millions of Americans through its employees? choices, product designs and algorithms steering the most intimate parts of our lives. See Andrew Selbst, Disparate Impact in Big Data Poiicing, 52 GA. L. REV. 109 (2018) (discussing how implicit biases enmeshed in algorithms can result in discriminatory effects). 5. The public interest in the agency correspondence around these documents is also of immense public interest. See Public Citizen v. US. Dep ?t of Labor, No. 1:18?cv?0001 17, (D.D.C. ?led Jan. 19, 2018) (arguing similarly that these correspondences are important to the public). 6. Claims that records containing statistical and aggregate data on diversity and correspondence between OFCCP and federal contractors pertaining to those records are exempt as trade secrets or con?dential commercial information under Exemption 4 is unjusti?ed. 7. Plaintiffs now asks the Court for an injunction requiring DOL to release the withheld records. JURISDICTION 8. The Court has subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. 552(a)(4)(B) and This Court also has jurisdiction over this action pursuant to 28 U.S.C. 1331 and 1436, and 5 U.S.C. 701?706. VENUE AND INTRADISTRICT ASSIGNMENT 9. Venue is proper in this district under 5 U.S.C. 552(a)(4)(B) and 28 U.S.C. 1391(e) and 1402. Plaintiff CIR has its principal place of business in this district. Plaintiff Will Evans is domiciled in this district. -2- FOR INJUNCTIVE RELIEF Case Document 1 Filed 04/02/18 Page 3 of 10 10. Assignment to the Oakland Division is proper pursuant to Local Rule 3-2(c) and because a substantial portion of the events giving rise to this action occurred in Alameda County, where Plaintiff principal place of business is located and most actions in this case occurred. PARTIES 11. Plaintiff CIR publishes Reveal an online news site at and Reveal a weekly public radio show with approximately 1 million listeners a week. Founded in 1977, as the ?rst national investigative news organization, CIR has received multiple awards for its reporting. CIR is a nonprofit established under the laws of the State of California, with its primary of?ce in Emeryville, California. 12. Plaintiff Will Evans is a staff reporter for Reveal and an employee of CIR. 13. Defendant DOL is a department of the executive branch of the US. government and an ?agency? within the meaning of 5 U.S.C. OFCCP is a component of DOL. DOL has its headquarters in Washington, DC, and offices all over the country, including in Oakland and San Francisco, California. FACTUAL BACKGROUND Reports and OFCCP 14. OF CCP is the component of DOL that is responsible for enforcing nondiscrimination and af?rmative action requirements imposed on federal contractors as ordered by Executive Order 11246, the Vietnam Era Veterans? Readjustment Assistance Act of 1974, and Section 503 of the Rehabilitation Act. 15. According to its website, mission is to ?protect workers, promote diversity and enforce the law.? OFCCP, Mission Statement, available at (last visited April 2, 2018). holds those who do business with the federal government?contractors and subcontractors?responsible for complying with the legal requirement to take affirmative action and not discriminate.? Id. 16. To achieve this, OF CCP collects data from ?Employer Information forms (hereinafter Reports?), a survey conducted annually under the authority of Title VII of the -3- FOR RELIEF Case Document 1 Filed 04/02/18 Page 4 of 10 Civil Rights Act of 1964, 42 U.S.C. 2000c, et. seq., as amended. See EEOC, Instruction Bookie: (2018), avoilabte at OFCCP and the Equal Employment Opportunity Commission together administer the Reports. 17. In accordance with Title VII, all employers in the United States with 15 or more employees are required to keep employment records. Id Based on those records, certain large employers are required to ?le Reports on an annual basis. Id 18. The Reports are not voluntary and under section 709(c) of Title VII the EEOC may cOrnpel an employer to ?le it by obtaining an order from the United States District Court. 42 U.S.C. 2000c. l9. Reports contain an Type 2 Consolidated Report (?Type 2 Report?), which is a one-page form that must include all U.S. employees of the company categorized by race, gender and job category. EEOC, Frequently Asked Question, available at The Type 2 Report does not contain more particularized or sensitive information like wage and payment information or the demographics of individual company of?ces. 20. While the EEOC is prohibited from disclosing reports under Title VII of the Civil Rights Act of 1964, this restriction does not apply to OFCCP. EEOC, Instruction Booklet, supra. 21. I Additionally, the con?dentiality provision does not apply to federal government contractors. Id (stating ?[t]he con?dentiality provision VII applies to all EEO-1 data submitted by ?lers that are not federal contractors?) (emphasis added). As the EEOC explains on its website ?[m]any years ago, the courts ruled that the prohibition against disclosure in Title VII does not apply to federal government prime contractors or ?rst?tier subcontractors.? EEOC, Frequently Asked Questions (2018), available at 22. OFCCP does not proactively disclose the EEO-1 Reports. To obtain copies, -4- COMPLAINT FOR INJUNCTIVE RELIEF Case Document 1 Filed 04/02/18 Page 5 of 10 individuals and institutions, including media, must submit a FOIA request. I 23. Once a request is submitted, OFCCP contacts federal contractors to notify them of the request for disclosure, but OFCCP is required to make a separate determination as to whether any Exemptions apply. EEOC, Instruction Booklet, supra. 24. The disclosure of these reports has been championed by civil rights activists such as Rev. Jesse Jackson Sr., members of Congress, investment ?rms, and companies themselves. See, e. g, Salvador Rodiguez, Jesse Jackson Gives Uber a Diversity Deadline, INC.COM, Jan. 5, 2017, Jessica Guyun, Barbara Lee calls on Apple, tech holdoats to release diversity data, USATODAY, Aug. 4, 2015, apple/31128479/; Will Evans, 11 men and 1 woman on management team? No need for diversity report, REVEALORG, Nov. 8, 2017, 25. The public need for disclosure of EEO-1 reports in promoting diversity is incontrovertible. The Federal Glass Ceiling Commission, created by the Civil Rights Act of 1991, stated in its 1995 report that it ?urges the Federal government and its agencies to look for ways to increase public access to diversity data? and that ?[t]he government should also explore the possibility of mandating public release of EEO-1 forms for Federal contractors and publically traded corporations.? Federal Glass Ceiling Commission, A Solid Investment: Making Full Use of the Nation ?s Human Capital (1995). 26. The collection of data in the Type 2 Reports is especially of significant public importance. While data contained in some of the other forms has been hotly debated, such as the inclusion of employee payment data, the statistics collected in the Type 2 Reports pertaining to race, gender and job category has been determined to be necessary for decades and continually collected. See Memorandum from Neomi Rao to Acting EEOC Chair Victoria Lipnic, Aug. 29, 2017, -5- COMPLAINT FOR INJUNCTIVE RELIEF Case Document 1 Filed 04/02/18 Page 6 of 10 27. Various news outlets, including CIR have used these reports as the foundation for numerous news articles that have informed the public about lack of diversity in Silicon Valley and the technology industry overall. See, e. Will Evans Sinduja Rangaraj an, Hidden ?gures: How Silicon Valley keeps diversity data secret, REVEAL.ORG, Oct. 19, 2017, Laura Lorenzetti, Mtcroso?? releases diversity stats: How the tech giant sizes up, FORTUNE, Jan. 5, 2015, Jessica Guynn, Apple leadership is more than 80% white and male, USATODAY, Nov. 9, 2017, male/850206001l. 28. Release of the Type 2 reports, as well as the communications between the OFCCP and the contractors would inform the public on this important t0pic of public concern. Id. The FOIA Request 29. On August 9, 201. 7 through August 25, 2017, Mr. Evans submitted five FOIA requests via email to OFCCP (hereinafter ?the EEO-1 Request?) seeking reports pertaining to various federal contractors. True and correct copies of those emails are attached as Exhibit A. The Request was consolidated under FOIA No. 838133. Id. 30. More specifically, Plaintiffs exclusively sought the Type 2 Reports for Oracle Corp, Hewlett-Packard Co., Salesforce, Splunk Inc., Dropbox, Inc., Fitbit, Gilead Sciences, Inc., Github, Inc., Pandora Media, Inc., Slack Technologies, Inc., Tesla, VMWare, Synnex, PayPal and Palantir. See Exhibit A. 31. Plaintiffs sought a waiver of search and review fees on the grounds that the CIR quali?es as a ?representative of the news media? and that the records are not sought for commercial use. 5 USC. 32. On October 20, 2017, Mr. Evans received an email from an OFCCP FOIA Officer stating that OFCCP had an interim response that the agency was working on and was expecting to send out the following week. A true and correct copy of the email is attached as Exhibit B. -6- COMPLAINT FOR INJUNCTIVE RELIEF 4s NOLA Case Document 1 Filed 04/02/18 Page 7 of 10 33. On November 9, 2017, Mr. Evans emailed the OFCCP FOIA of?cer for an update but did not receive a response. A true and correct copy of that email is attached as Exhibit C. 34. On November 17, 2017, Mr. Evans contacted the OF CCP FOIA of?cer by phone for an update and was told that the response was being processed. 35. On November 27, 2017, CIR sent an letter to OFCCP to explain that Mr. Evans had received no determination from OFCCP and under 5 U.S.C. 552(a)(6)(A) a FOIA request is considered constructively denied after twenty business days. A true and correct copy of that letter without attachments is attached as Exhibit D. 36. On January 29, 2018, Mr. Evans received a ?nal response (hereinafter ?Denial of from an OFCCP FOIA Of?cer. A true and correct copy of that letter and its attachment is attached as Exhibit E. 37. The Denial of EEO-1s categorized the various responses given by the contractors to OF notice of the Request. Id. It listed, ?Companies that objected to the release of their data on the grounds of FOIA Exemption 4? and ?Companies that did not object to the release of their data.? Id. 38. The Denial of did not state whether OFCCP had separately determined that Exemption 4 applied, which part of Exemption 4 applied, and did not explain why Exemption 4 applied. Id. The Denial of did not release any segregable portions of the EEO-1 Reports. It also concluded that Mr. Evans was a news media requester. Id. The Correspondence Request 39. On December 6, 2017, Mr. Evans requested copies of the correspondence between OFCCP and the federal contractors who objected to the release of Consolidate Type 2 Reports (hereinafter the ?Correspondence Request?). A true and correct copy of that request and its acknowledgment is attached as Exhibit F. The Correspondence Request was assigned tracking number 846575. Id. 40. By letter dated Mach 13, 2018 OFCCP sent a ?nal denial to Mr. Evans (hereinafter, ?Denial of Correspondence?). A true and correct copy of that letter is attached as Exhibit G. 41. The Denial of Correspondence listed, ?Companies that objected to the release of their -7- COMPLAINT FOR INJUNC TIVE EF LUJM Case Document 1 Filed 04/02/18 Page 8 of 10 correspondence on the grounds of 01A Exemption 4? and ?Companies that have not objected to the release of their correspondence under Exemption Id. 42. The Denial of Correspondence did not state whether OF CCP had separately determined that Exemption 4 applied, which part of Exemption 4 applied, and did not explain why Exemption 4 applied. Id. Compare Exhibit with Exhibit G. The Appeal 43. On February 28, 2018, CIR General Counsel, D. Victoria Baranetsky sent a letter to DOL appealing both denials and requesting an immediate response and processing of the Request. A true and correct copy of the appeal letter (without attachments) is attached as Exhibit H. 44. The letter argued that withholding is improper under Exemption 4 because the requested records do not contain trade secrets or commercial information and they are not con?dential. Exhibit H. The letter also argued that the agency made no separate determination as to the records as evidenced by its failure to disclose all segregable portions. Id. Finally it argued that disclosure is in the public interest. Id. 45. Plaintiffs received a letter dated March 16, 2018 stating that the agency received the appeal and notifying Plaintiff that ?the number of appeals currently awaiting review and decision is very substantial.? A true and correct copy of the appeal letter (without attachments) is attached as Exhibit 1. 46. To date, DOL has made no final determination as to the appeal. 47. More than 20 working days have passed since Plaintiffs submitted their appeal on February 28, 2018. 48. DOL has failed to comply with 01A, 5 U.S.C. requiring that an agency make a determination with respect to an appeal within the 20 business days. 49. Having exhausted all administrative remedies, Plaintiffs now seeks injunctive relief. CAUSE OF ACTION Violation of Freedom of Information Act 50. Plaintiffs repeats and realleges paragraphs 1-49. -3- COMPLAINT FOR INJUNCTIVE RELIEF .12Case Document 1 Filed 04/02/18 Page 9 of 10 51. DOL is subject to FOIA and must therefore release in response to a FOIA request any diselosable records in its possession and provide a lawful reason for withholding any materials as to which it is claiming an exemption. 52. DOL has no lawful basis for declining to release the records requested by Plaintiffs under 01A. 53. DOL has failed to act on Plaintiffs? appeal within the 20 business days required by FOIA. See 5 U.S.C. Accordingly, Plaintiffs are deemed to have exhausted their administrative remedies under FOIA. 54. Plaintiffs is entitled to declaratory and injunctive relief compelling the release and disclosure of the requested records. REQUESTED RELIEF WHEREFORE, Plaintiffs prays that this Court: 1. Declare that Defendant DOL violated FOIA by failing to provide requested records in response to Plaintiffs? FOIA requests and failing to notify Plaintiffs of any determination; 2. Declare that the documents sought by their FOIA request, as described in the foregoing paragraphs, are public under 5 U.S.C. 552 and must be disclosed; 3. Order Defendant DOL to provide the requested documents to Plaintiffs within 20 business days of the Court?s order; 4. Award Plaintiffs the costs of this proceeding, including reasonable attorneys? fees, as expressly permitted by and 5. Grant Plaintiffs such other and further relief as this Court may deem just and proper. -9- FOR INJUNCTWE RELIEF Case Document 1 Filed 04/02/18 Page 10 of 10 DATED: April 2, 2018 Respectfully submitted, By: D. Victoiia MN 31 1392) THE CENTER FOR INVESTIGATIVE REPORTING 1400 65th St., Suite 200 Emeryville, CA 94608 Telephone: (510) 809-3160 Email: Vbaranetsky@revealnews.org Attorney for Plaintiffs _10_ COMPLAINT FOR INJUNCTIVE RELIEF