The Ninth Circuit Court of Appeals, on July 30, ordered OFCCP to release federal contractors’ EEO-1 Type 2 reports.
Background
Between January 2019 and June 2022, the Center for Investigative Reporting (CIR) sought from OFCCP, through FOIA requests, all federal prime contractors’ and first-tier subcontractors’ EEO-1 Type 2 Consolidated Reports for the period 2016-2020. These requests were consolidated into a single request in June 2022. The Type 2 Report includes data for all employees of the company (i.e., all employees at headquarters as well as all establishments) categorized by race/ethnicity, sex, and job category. Contractors were afforded an opportunity to object to the release of their EEO-1 data.
OFCCP released the EEO-1 reports of approximately 4,800 contractors who did not object to disclosure. Approximately 70,000 EEO-1 reports of contractors, who timely filed objections, were withheld. In November 2022, while OFCCP’s review was ongoing, CIR initiated litigation in the Northern District of California. On December 22, 2023, the court held that EEO-1 Reports do not contain the type of “commercial” information that is protected from disclosure under FOIA and ordered OFCCP to release to CIR all EEO-1 Type 2 reports for the period requested. OFCCP appealed the District Court’s decision to the Ninth Circuit Court of Appeals.
Circuit Court Orders OFCCP Ordered to Release Withheld EEO-1 Reports
On July 30, 2025, the Ninth Circuit affirmed the District Court’s ruling holding that EEO-1 reports do not constitute “commercial” information under Exemption 4 of FOIA. The court held that
“[i]nformation is ‘commercial’ under Exemption 4 if it either is an object of commerce or has commerce as its subject. That is, ‘commercial information’ (1) is made to be bought and sold or (2) describes an exchange of goods or services for profit.” The court further stated that “[t]he government may not rely on Exemption 4 where the withheld information only tenuously or indirectly concerns the exchange of goods or services or the making of a profit.”
It is unlikely that the OFCCP will appeal this decision. Accordingly, the withheld EEO-1 reports will be posted in the OFCCP FOIA Library along with previously released resorts.
If you have any questions regarding this legal alert, contact Consuela Pinto.
