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Orrick, Herrington & Sutcliffe LLP
Columbia Center
11 52 15t h St reet, N.W.
Washington, D.C. 20005-1706

+1 202 339 8400
orrick.com
Harry L. Clark

E HCLARK®ORRICK.COM
0 +1 202 339 8499
F +1 202 339 8500

September 13, 2017

VIA EMAIL TO OFCCP_NO_FOIA@DOL.GOV and FEDEX
FO IA Coordinator
Office of Federal Contract Compliance Programs
U.S. Department of Labor
200 Constitution Avenue, NW, Room C3325
Washington, DC 2021 0
Re:

Objection on Behalf of Oracle Corporation to Disclosure Pursuant to
Freedom of Information Act Request No. 838133

Dear Sir/Madam:
This letter responds to the letter of D. Lissette Gean, Special Assistant, Office of Federal
Contract Compliance Programs ("OFCCP"), U.S. Department of Labor, to Dorian Daley, General
Counsel, Senior Vice President and Secretary, Oracle Corporation, ("Oracle") dated August 17,
20 17. I am responding on behalf of Oracle.
D. Lissette Gean' s letter informed Oracle that OFCCP received a request under the
Freedom of Information Act ("FOIA") from Mr. Will Evans of The Center for Investigative
Reporting for Equal Employment Opportunity Employer Information Reports ("EE0-1 Reports")
submitted by Oracle for the years 2015 and 2016 ("Requested Information"). Although OFCCP
has not provided Oracle with a copy of the information it proposes to release pursuant to Mr.
Evans' request, Oracle understands the Requested Information consists of all EE0-1 consolidated,
headquarters, and establishment reports submitted by Oracle for 2015 and 2016 ("20 15 and 2016
EE0-1 Reports") . We understand that OFCCP is not planning to release any other reports.

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This submission is timely given that Oracle received D. Lissette Gean's letter on August
25, 2017, and was given 30 days from receipt of the letter to submit an objection.
Oracle objects to release of the Requested Information. The Requested Information falls
within the exemption set forth at FOIA section 552(b)(6), which protects certain privacy interests
of third parties and within the exemption set forth at FOIA section 552(b)(4), which protects trade
secrets and confidential commercial information on the grounds that release of such information
could reasonably be expected to cause substantial competitive harm. As you may recall, Oracle
successfully objected to: 1) a FOIA request made in 2008 seeking disclosure of full copies of the
EE0-1 reports submitted by Oracle for the years 2000 to 2005, 2) a FOIA request made in 20 13
seeking disclosure of full copies of the EE0-1 reports submitted by Oracle for the years 2011 and
2012, 3) a FOIA request made in 2013 seeking disclosure ofEE0-1 reports regarding total female
employees by job category and total employees by job category as reported by Oracle for the years
2005, 2009 and 20 10 or any of these years during which Oracle self-identified as a federal
contractor; 4) a FOIA request made in 2014 seeking disclosure of full copies of the EE0-1 reports
submitted by Oracle for the years 2007 and 20 12; 5) a FOIA request made in 2015 seeking full
disclosure of the EE0-1 reports submitted by Oracle in 2012; 6) a FOIA request made in 2015
seeking full disclosure ofEE0-1 reports submitted by Oracle in 2004, 2009, 2012 and 20 13, and
7) a FOIA request made in 2017 seeking full disclosure of EE0- 1 reports submitted by Oracle
from 2004-2015. 1

1

Letter from AI Laich, Director, Divis ion of Management and Administrative Programs, U.S. Department
of Labor, to Gary R. Siniscalco of Orrick, Herrington & Sutcliffe, LLP (Feb. 12, 2008) concurring w ith
Oracle's position that EE0- 1 summary data are exempt from mandatory disclosure pursuant to Exemption
4 and Exemption 6 of the FOIA; Email from Forrest Horak, Program Analyst, OFCCP, U.S. Department
of Labor, to E lizabeth Zane of Orrick, Herrington & Sutcliffe LLP (August 20, 2013) concurring with
Oracle's position that EE0-1 summary data are exempt from mandatory disclosure pursuant to Exemption
4 of the FOIA; Email from Forrest Horak, Program Analyst, OFCCP, U.S. Depattment of Labor, to
Elizabeth Zane of Orrick, Herrington & Sutcliffe LLP (August 20, 201 3) concurring w ith Oracle 's position
that EE0-1 summary data are exempt from mandatory disclosure pursuant to Exemption 4 of the FOIA;
Email from Herman Narcho, National Office FOIA Coordinator, OFCCP, U.S. Depattment of Labor, to
Elizabeth Zane of Orrick, Herrington & Sutcliffe LLP (March 4, 2015) confirming that based on Orac le's
objections, OFCCP withheld the requested data; Email from Herman Narcho, Branch Chief, Enforcement,
OFCCP, U.S. Department of Labor to Elizabeth Zane of Orrick, Herrington & Sutcliffe LLP (August 3,
2015) confirming that based on Oracle's obj ections OFCCP w ithheld the requested data; Email from
Herman Narcho, Branch Chief, Enforcement, OFCCP, U.S. Depattment of Labor to Elizabeth Zane of
Orrick, Herrington & Sutcliffe LLP (August 3, 20 15) confirming that based on Orac le's objections OFCCP
withheld the requested data; Letter from OFCCP to Oracle confirming that based on Oracle 's objections
OFCCP withheld the requested data (April 20 17).

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A.

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Given Personal Privacy Interests, Section 552(b)(6) Bars Release of the
Requested Information

Oracle objects to release of the Requested Information because its release "would
constitute a clearly unwarranted invasion of personal privacy" under the Section 552(b)(6)
exemption to the FOIA. In order for this exemption to protect against disclosure, the information
proposed to be released must fall within the category of "personnel and medical files and similar
files." 5 U.S.C. § 552(b)(6) (emphasis added). The Supreme Court has held that this term must
be interpreted broadly, confirming that protection of an individual's privacy "surely was not
intended to turn upon the label of the file which contains the damaging information." United States
Department of State v. Washington Post Co., 456 U.S. 595, 601 (1982) (citing H.R. Rep. No. 891497, at 11 (1966)). Thus, this threshold is met if the information applies to any particular,
identifiable individual. Id. at 602.
The Requested Information reveals the identity and self-reported race and gender of
specific individuals. Certainjob categories have few employees of the specified gender and races.
Where numbers in the categories are in the single digits, individuals may be discernible since
Oracle is such a highly visible employer in a very competitive industry. Where there is only one
person in a given category, especially if the individual is an Executive/Senior Level Official or
Manager, it is very easy to deduce the person' s identity.
Oracle's 2015 and 2016 EE0-1 headquarters reports contain categories with employees in
the single digits as do Oracle's 2015 and 2016 EE0-1 consolidated reports. For example, the 2016
headquarters report indicates that there were two Hispanic or Latino males and one Asian female
in the Executive/Senior Level Official or Managers category, one Native Hawaiian or other Pacific
Islander male in the First/Mid Level Officials and Managers category, four Black males in the
Administrative Support Workers category, and three Black males and one Black female in the
Technicians category. The 2015 consolidated report indicates that there are two Black males in
the Executive/Senior Level Official or Managers category, one Native Hawaiian or Pacific Islander
female and five Hispanic females in the Technician category, and one American Indian or Alaskan
Native in the Administrative Support category. The identities of these individuals can be easily
discovered, particularly in categories containing only one person of a gender identified as a certain
race. The establishment reports make it even easier to identify individuals as many categories in
the reports contain only one person. Since the race and gender data in the 2015 and 2016 EE0-1
Reports facilitate identification of specific individuals, the privacy interests of these individuals
must be protected through nondisclosure.
The self-reported race and gender information contained in the 2015 and 2016 EE0-1
Reports implicates personal privacy interests, and an individual's control of such personal

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information concerning his or her person must be respected. First, the data are self-reported.
Therefore, the racial and gender data do not merely reflect biological categories that are known to
the public; the data in these reports reveal a person's self-identification with a particular racial,
ethnic, or gender group. Self-identification with racial, ethnic, or gender categories is an extremely
personal and private matter. Information regarding a person's self-identification is not public
information, and may be something that identifiable individuals do not wish to share with the
public.
It is not relevant that Oracle's employees voluntarily self-identified with a particular racial,
ethnic, or gender category. The government has explicitly promised in many sources that the
information reported in EE0-1 forms will be kept confidential and that individuals will not be
identified.2 Individuals who may have otherwise refused to disclose the racial or ethnic group with
which they self-identify may have identified themselves under this promise of confidentiality.

Finally, this FOIA request seeks information on employees who may reside in states that
have unique personal protections under their privacy laws. 3 In California, for example, such
information is protected by the privacy rights guaranteed by article I, section 1 of the California
Constitution. Oracle and the United States Government have a duty to protect from release to the
general public confidential information obtained from Oracle's employees. To the extent that
information appearing in the 2015 and 2016 EE0-1 Reports is linked to specific, identifiable
individuals, Oracle believes that it must not be disclosed to members of the public. This California
privacy right, similar to the privacy rights in other states, is consistent with the FOIA section
552(b)(6) exemption, and disclosure of the Requested Information would clearly be an
unwarranted invasion of personal privacy under the exemption and the California Constitution.
Because Oracle's employees disclosed private information while relying on the
government's assurances of confidentiality, the OFCCP should be extra cautious when deciding
whether to disclose these records containing this personal private information. An explicit privacy
guarantee under the California Constitution and other, similar, state statutes shows that California

2

E.g., Instruction Booklet for the EE0-1 Employer Information Report, available at
http://www.eeoc.gov/employers/eeo 1survey/2007 instructions.cfm ("When reported, data will not identify
any specific individual.").

3

Some states that enforce personal privacy protections are: Arizona, A.R.S. Canst. At1. 2 § 8 ("No person
shall be disturbed in his private affairs, or his home invaded, without authority of law"); Florida, F.S.A.
Canst. Art. 1 § 23 ("Evety natural person has the right to be let alone and free from governmental intrusion
into the person's private life ..."); Illinois, ILCS Canst. At1. 1, §§ 6, 12; Washington, RCWA Canst. At1.
1, § 7 ("No person shall be disturbed in his private affairs, or his home invaded, without authority of law").

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employees enjoy an enhanced privacy interest in the kind of information at issue that cannot be
overcome by the ordinary interest in disclosure established by the FOIA.
For all the foregoing reasons, Oracle requests that the OFCCP protect the personal privacy
interests of Oracle employees by withholding the Requested Information from disclosure.
B.

Requested Information Constitutes Trade Secrets under Section 552(b)(4)

The Requested Information encompasses data on the size and structure of Oracle's
workforce. Competitors could use the Requested Information in conjunction with industry
knowledge to gain substantial insight into the organizational structure of Oracle's workforce. In
addition, the Requested Information would, as discussed above, facilitate identification of key
minority or female employees. These pieces of information are trade secrets under the section
552(b)(4) exemption to the FOIA.
Oracle understands that the Requested Information includes limited information
regarding its workforce, but believes that because of the size, constituency and competitive nature
of its market and the constituency of its own workforce, there is a very real threat to its competitive
position.
Oracle is a highly visible technology company in the very competitive computer hardware
and software industries. These industries are constantly and quickly evolving, and the competition
among the companies is fierce. For example, in 2014, Oracle and competitor SAP reached a
$356.7 million settlement based on findings that SAP was pirating Oracle's software and reselling
it in the marketplace. 4
The organizational structure of Oracle's workforce is a private, commercially valuable
plan for Oracle. The way that Oracle organizes its workforce is a direct result of its substantial
effort and innovation in devising ways to make the company run effectively with the changing
times. The Requested Information conveys more than just the number of employees in each job
category; it communicates Oracle' s experience and expertise in the field of how to structure the
workforce to have a well-run, profitable, and efficient company.
The Requested Information provides a detailed breakdown of how Oracle stratifies its
workforce. It provides commercially valuable information such as how many support staff are
required for Oracle to efficiently function, how many employees Oracle needs to effectively sell
its products, and how many top level managers are required to oversee Oracle's business functions.
4
See Jim Finkle and Dan Levine, Oracle, SAP Settle Long-Running TomorrowNow Lawsuit, Reuters (Nov. 13, 2014)
available at http://www.reuters.com/article/20 14/ll/13/us-oracle-sap-se-settlement-idUSKCNOIX2RJ20 141113.

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In addition, even though the Requested Information contains general job categories, specific job
titles of Oracle's employees can potentially be deduced with the aid of the EE0-1 Job
Classification Guide, which lists job titles that belong in each of the general job categories. With
this guide, Oracle's competitors can easily consider the job titles in the context of the software and
hardware industries and gain an even more detailed picture concerning the current composition of
Oracle's workforce. If competitors can see how Oracle stratifies its workforce, it will cause
competitive harm by providing insight into Oracle's successful workforce strategy. Because
release ofthis information would allow competitors to deduce various aspects of Oracle's business
strategy, it is critical to Oracle that its trade secrets be protected.
Allowing Oracle's competitors to grow and restructure with the help of the Requested
Information would give them a competitive advantage. The release of private commercial
information which sheds light on Oracle's workforce and business practices would allow Oracle's
competitors to use that information without incurring any of the costs that Oracle bore in
developing such practices. And because these industries are quickly evolving, any advantage that
Oracle's competitors gain can potentially have an extremely large effect in the competitive
positions of industry peers. Since the computer software industry is intensely competitive, any
advantage Oracle's competitors gain may have a very significant and detrimental impact on
Oracle's business.
In addition, the Requested Information, if obtained by one of Oracle's competitors, can
enable that firm to identify key minority or female employees who now work at Oracle and solicit
these employees for employment. This is especially true in job categories in which there are few
employees of a specified race and gender. Because a high proportion of Oracle's employees are
highly trained and skilled professionals, officials and managers, this could put Oracle at precisely
the kind of competitive disadvantage contemplated by exemption 552(b)(4) to the FOIA.
For positions for which Oracle has a large number of minority or female employees, the
information would be helpful to competitors because they will know which areas they can
specifically target to recruit talented minority or female employees with that particular skill set. If
information that could lead to the identification and raiding of minority or female employees is
released, and such a raid does occur, Oracle will suffer substantial competitive injury. Maintaining
a diverse workforce is not only important to Oracle, which has made significant efforts to recruit
and retain talented minority and female employees, but also to many of Oracle's clients and
business associates. Losing highly talented diverse staff would be a costly and huge competitive
disadvantage to Oracle. This result is very likely given the level of talent of Oracle's employees
and the competitive nature of the high technology industry. The computer hardware and software
industries are populated nationally by a small number of firms. A number of these firms are

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headquartered in two counties in Northern California (San Mateo and Santa Clara Counties).
Competition remains fierce for qualified individuals in these geographic areas.
Accordingly, to protect the identities of Oracle's employees and the details of Oracle's
workforce structure, Oracle requests that the OFCCP not disclose the Requested Information.
C.

Requested Information is Confidential Commercial Information under
Section 552(b)(4)

Information regarding the size and structure of Oracle's workforce and information that
can identify key minority and female employees is also confidential commercial information under
the section 552(b)(4) exemption to the FOIA.
As previously discussed, Oracle clearly has a commercial interest in the requested
information. First, the organizational structure of Oracle's workforce can provide competitors
with valuable commercial information as to how to effectively and efficiently organize the
workforce of a large and profitable high technology company. It will reveal how Oracle stratifies
its workforce and endanger the significant investment and effort Oracle has levied to create and
refine a workforce structure to efficiently serve its needs as a high technology company. Second,
Oracle's talented and diverse workforce is sought after by many other high technology companies,
and revealing information that could allow Oracle' s competitors to raid key minority or female
employees can have a profound effect on Oracle's commercial interests. Because a large
proportion of Oracle' s employees are highly trained and skilled professionals, officials and
managers, this could put Oracle at precisely the kind of competitive disadvantage envisioned in
exemption 552(b)(4) to the FOIA.
Given the intensely competitive nature of these industries and among high technology
companies, and the frequent raiding of competitors' employees, Oracle has been careful in
protecting the identities of its employees and its personnel activities. Oracle has never publicly
released in any format the kind of information contained in the Requested Information.
Accordingly, Oracle requests that the OFCCP similarly protect the identities of Oracle's
employees and the details of Oracle's workforce structure.

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In sum, the Requested Information is exempt from disclosure pursuant to FOIA sections
552(b)(6) and (b)(4). Consequently, Oracle urges that the Department of Labor reject the request
for this information.
Sincerely,

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Elizabe
Harry ~·~........__

C:\Users\j8v\Desktop\E. Zane\Oracle FOIA Objection Letter
(Request 838 133).doc