EMANUEL CLEAVER, FIFTH DISTRICT. MISSOURI FINANCIAL SERVICES COMMITTEE HOUSING AND INSURANCE SUBCOMMITTEE - RANKING MEMBER '41 FACEBOOK.COMIEMANUELCLEAVER II OVERSIGHT AND INVESTIGATIONS SUBCOMMITTEE mungre?? [If it]? ?nitgh gtate? Emmi: 11f i?eprwanta?nw March 6, 2019 The Honorable Alexander Acosta Secretary United States Department of Labor 200 Constitution Avenue, NW Washington, DC 20210 Dear Secretary Acosta: The Freedom of Information Act (FOIA) provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records are protected from public disclosure by exemption or by special law enforcement record exclusion.? The United States Supreme Court has af?rmed that the purpose of the FOIA is to ensure an informed citizenry which is both vital to democracy and a necessary tool for those who wish to hold their government accountable.2 As much of the government?s work continues to be delegated to private contractors, it is important that the spirit of accountability through transparency prevails, and that citizens retain the right to access information related to the oversight and compliance of private contractors in whom the United States has bestowed the public?s trust. It has come to my attention that several government contractors have asserted that data regarding the racial and gender makeup of their workforces, information critical to contract oversight, quali?es as a trade secret and/or privileged commercial information under exemption 4 of the FOIA.3 These reports tread on the heels of a long history of ?rms seeking to enshroud information of public concern into well- guarded vaults of secrecy. Often seeking to avoid public scrutiny, it is my concern that the government could fortify the efforts of relevant contractors through interpretations of the FOIA that favor the presumption of non-disclosure. Speci?cally, I write out of concern that required forms, which enumerate the diversity of ?rms accepting the taxpayer money, may potentially be denied disclosure under Department of Labor Of?ce of Contract Compliance Programs interpretation of the FOIA.45 I am respectfully requesting the following infOrmation before April 1, 2019: 0 The number of and precise instances where the Department of Labor has released an report following the objection of a federal contractor pursuant to 29 CFR 70.26 since January 1, 2017. 1 Department of Justice. ?The Department oflustice The Freedom of Information Act," Updated October 30, 2018. 2 NLRB V. Robbins Tire 8: Rubber Co., 437 U.S. 214, 242 (1978) 3 Williams, Jamillah Bowman. "Why Companies Shouldn?t Be Allowed to Treat Their Diversity Numbers as Trade Secrets," February 15, 2019. 4 Evans, Will. ?We Sued the Government for Silicon Valley Diversity Data,? April 26, 2018. 5 Rangarajan, Sinduja and Will Evans. "We Got the Government to Reverse its Longtime Policy to Get Silicon Valley Diversity Data,? November 15, 2018. PLEASE REPLY TO: 2335 RAYBURN HOB 101 WEST 315T STREET 211 WEST MAPLE AVENUE 1923 MAIN STREET WASHINGTON, DC 20515 KANSAS CITY, MO 64108 INDEPENDENCE, MO 64050 HIGGINSVILLE. MO 64037 (202) 225-4535 (PHONE) (816) 542-4545 (PHONE) (816) 833-4545 (PHONE) (660) 584-7373 (PHONE) (202) 225-4403 (Fm) (8113) 471-5215 (816) 833-2991 (Pu) (660) 584-7227 PRINTED 0N RECYCLED PAPER I Copies of letters of objection submitted by relevant technology companies relating to The Center of Investigative Reporting?s 2017 Freedom of Information Act requests to the Department of Labor?s Of?ce of Federal Contract Compliance Programs. 0 Whether or not the Department of Labor has decisively determined that consolidated reports for multi-establishment employers demands the same protections under exemption 4 of 5 US. Code 552 as do other required EEO-1 submissions. 0 Any established case law, rules, or regulations the Department of Labor believes would exempt consolidated EEO-1 reports from public disclosure. While the disclosure of speci?c information about internal business strategies and initiatives may be determined to be privileged, it is my strong conviction that neither the spirit or letter of commercial information protections, or regulation of trade secrets as de?ned in 18 US. Code 1839, would prevent the Department of Labor from disclosing consolidated government contractor demographic data under the FOIA. Several companies in competitive industries have voluntarily released consolidated EEO-1 forms, or diversity reports, lending scrutiny to the oppositional idea that disclosure of such information would create a signi?cant competitive disadvantage in the hands of competitors. Further, the idea that non- consolidated forms provide competitors with insight of value into other protectable information begs evidentiary demonstration of the actual possibility and likelihood of signi?cant harm. Also demanding further evaluation are private-sector claims that the disclosure of diversity information on required forms would deter employees from voluntarily reporting such information, thereby inhibiting the governments ability to collect reliable information, which pivot on arguments of derisory impact and dubious assumptions.6 It is my hope that the public and private interests entitled by the FOIA are receiving the appropriate balance, and I look forward to continued dialogue on this important issue. Sincerely, 5