OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
Attorneys at Law

Ogletree
Deakins

First Base Building,
2142 Boyce St., Suite 40 I
Columbia, SC 29201
Telephone: 803 .252.1300
Facsimile: 803.254.6517
www.ogletree.com

Leigh M. Nason
leigh.nason@ogletreedeakins.com

December 20, 2017
CONFIDENTIAL
VIA E-MAIL (OFCCP NO FOIA@DOL.GOV)

D. Lissette Gean
Special Assistant
U.S. Department of Labor
Office of Federal Contract Compliance Programs
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Re:

Objection to EE0-1 Disclosure
FOIA Request Tracking No. 838133

Dear Special Assistant Gean:
We represent SYNNEX Corporation ("SYNNEX" or "the Company"), in the above referenced
matter. As counsel for Company, we write to respond to the Office of Federal Contract Compliance
Programs' ("OFCCP") November 29, 2017, letter alerting SYNNEX to a Freedom of Information
Act ("FOIA") request submitted by the Center for Investigative Reporting ("CIR") for any EE0-1
Reports submitted by the Company.
In summary, this request should be denied because: (1) release of the documents does not further
government transparency or serve the public' s interest, and (2) the information contained in the
Reports fall under Exemption 4 of the FOIA, 5 USC§ 552(b)(4) , which protects " ... commercial
or financial information obtained from a person [that is] .. . confidential."
I.

RELEASE OF SYNNEX's EE0-1 REPORTS WILL NOT FURTHER FOIA's GOAL TO
ENCOURAGE GOVERNMENT ACCOUNTABILITY AND SERVES No PUBLIC BENEFIT.

The goal of FOIA is to encourage transparency in government and thereby ensure that the
government is accountable to its citizens. In signing FOIA, President Lyndon B. Johnson noted,
"No one should be able to pull the curtains of secrecy around decisions which can be revealed
without injury." See FOIA Update Vol. XVII, No. 3 (1996). Therefore, the purpose of FOIA is to
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Houston • Indianapolis • Jackson • Kamas City • Las Vegas • London (England) • Los Angeles • Memphis • Mexico City (l\'Iexico) • Miami • !VJiJwaukee • Minneapolis
Morristown • Nashville • New Orleans • New York City • Oklahoma City • Orange County • Pru.i~ (France) • Philadelphia • Phoenix • Pittsburgh • Portland • Raleigh • Richmond
St Louis • St Thomas • Samunento • San Antonio • San Diego • San Francisco • Seattle • Stamford • Tampa • Toronto (Canada) • Torrance • Tucson • Washington

 D. Lissette Gean
December 20, 2017
Page 2

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Deakins

provide transparency to government decisions, not those of private employers. However, the
disclosure obligation under FOIA is not absolute. FOIA provides exemptions to protect, for
example, national security, trade secrets and confidential commercial or financial information, and
privileged information.
Certainly, the release of SYNNEX's EE0-1 Reports will not provide transparency regarding
OFCCP decisions. Because SYNNEX is a federal contractor and an affirmative action employer,
the OFCCP has the ability to monitor and evaluate the Company's diversity and equal employment
opportunity efforts through compliance evaluations. However, the disclosure of its EE0-1 Reports
will not provide any additional governmental transparency or accountability to its citizenry for the
actions ofthe OFCCP.
FOIA represents a carefully considered balance between the right of the public to know the
activities of its government and the often compelling interest that the government has in keeping
certain information private, whether to protect particular individuals or the national interest as a
whole. See John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989). When the material in the
government's control is a compilation of information about private citizens, rather than merely a
record of government activity, there is little legitimate public interest that would outweigh the
invasion of privacy because the information reveals little or nothing about an agency' s own
conduct. See Reporters Comm. for Freedom of the Press, 489 U.S. at 780. Here, the information
requested is confidential information about private citizens, the disclosure of which does nothing to
help the public or the CIR better understand OFCCP's activities.

II.

THE INFORMATION CONTAINED IN SYNNEX's EE0-1 REPORTS Is EXEMPT FROM
DISCLOSURE UNDER UNDER FOIA EXEMPTION 4.
A.

SYNNEX's EE0-1 Reports Contain Data that Could Cause Commercial and
Financial Harm to the Company

The information contained in the requested EE0-1 Reports squarely falls under Exemption 4 of the
FOIA, 5 USC § 552(b)(4), by safeguarding the Company "from the competitive disadvantages
that could result from disclosure." If the Company's confidential EE0-1 Reports are made public,
the information in them could give the Company's competitors insight into SYNNEX's hiring
strategies and employment trends. A company's success in competing for prized human capital is a
significant market advantage. If SYNNEX's competitors gain access to confidential information
about the Company' s pool of professional and skilled workers, or the way the Company structures
its workforce, this will place SYNNEX at a competitive disadvantage in the marketplace. Indeed,
SYNNEX's highly trained minority and female employees in the executive, management,
professional, technical and sales EE0-1 categories are likely to be in high demand in the business
process services industry. If the requested EE0-1 Reports become public such that competitors are
able to ascertain the location of SYNNEX's workers, the Company could become vulnerable to
employee-raiding activities by competitors who seek to hire away its minority employees in these
skilled job categories through targeted recruiting efforts instead of developing and training their
own human capital. This is precisely the type of information that FOIA intended to protect under
Exemption 4.

 D. Lissette Gean
December 20, 2017
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In addition to the commercial harm the Company would suffer due to the release of the EE0-1
Reports, if the information requested by the CIR becomes public, SYNNEX's competitors or other
third parties may use the workforce data to harm the Company's reputation. Since the Company
likely will not have the opportunity to place its workforce data in context or describe its diversity
successes and programs to those to whom the results may be published, the Company's data likely
will be mischaracterized, which will harm the Company's reputation and subject the Company to
public and private claims that are malicious or erroneous in nature. Furthermore, any unwarranted
assertions made against the Company would be harder to refute if they are somehow tied to an
official document such as the EE0-1 Report. For example, a newspaper doing an expose or
plaintiffs seeking a basis for class certification in litigation could seek to negatively characterize the
work environment as unfriendly toward minorities or females based on selective interpretation of
data (and without further evidence).
The competitive and public relations harm that could be suffered by SYNNEX through disclosure
of any of its EE0-1 Reports to a third party, particularly one who may publish the data with little
background information, is considerable. Thus, the request for release of the Company's EE0-1
Reports should be denied under Exemption 4.
B.

SYNNEX Has Maintained the Confidentiality of Its EE0-1 Reports, and has
Disclosed Them Only to the U.S. Department of Labor, OFCCP or EEOC When
Required

As explained above, the raw data found in the Company's EE0-1 Reports may be used to gain a
competitive advantage, may be taken out of context, and is subject to manipulation and/or
mischaracterization. SYNNEX, therefore, treats the EE0-1 Reports as confidential and restricts
access to select Company personnel on a "need to know" basis. The Company's policy is only to
disclose this data to federal agencies such as the EEOC and OFCCP, which require such disclosure.
C.

SYNNEX Employees Have an Expectation of Privacy and Confidentiality in the
Information Contained in the EEOl- Reports

SYNNEX takes great pride in providing its employees an open, supportive workplace environment
free from discrimination, harassment and intimidation. The Company's employees feel comfortable
in their environment in part because they have an expectation of privacy and confidentiality in the
information provided to and retained by the Company. SYNNEX's strict policies limiting
disclosure ofEE0-1 information are intended not simply to protect the Company, but also to protect
the privacy of SYNNEX's employees. Particularly in those EE0-1 categories where the Company
has relatively few employees at a particular site, disclosure of the EE0-1 Reports compromises the
privacy of individual employees by revealing confidential race or ethnicity self-identification
choices. Any documents that could disclose the personal racial, ethnic, or gender self-identification
of individual employees could also therefore fall under the FOIA exemption for records that "would
constitute a clearly unwarranted invasion of personal privacy." 5 US. C.§ 552(b)(6). For example,
in the 2016 EE0-1 Report for 15065 Flight Avenue, Chino, CA, there is only one employee in the
Technicians category. Similarly, in the HYVE Solutions 2016 EE0-1 report for 600 Stewart Street,

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Seattle, WA, there is only one employee in the First/Mid Officials & Managers category. The same
is true for the site at 4150 Industrial Center Drive, North Las Vegas, NV. At that location, there is
only one employee in the First/Mid Officials & Managers category. By disclosing any EE0-1 data,
OFCCP would facilitate the disclosure of the race choices of these employees. Furthermore,
releasing information that SYNNEX's employees relied upon as confidential will undermine the
Company's credibility as an employer and disrupt the healthy workplace that SYNNEX has worked
so hard to create.

*

*

*

For the reasons stated above, SYNNEX requests that the OFCCP deny the request for disclosure of
all of the Company's EE0-1 Reports under FOIA Exemption 4. We trust that this letter has
illustrated the Company's legitimate concerns and the basis for its objections to the disclosure of
any of its EE0-1 Reports.
Please do not hesitate to contact me if you have any questions or need any additional information.
Thank you for your consideration.
Very truly yours,

Leigh M. Nason

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