Summary
The Ninth Circuit affirmed an order requiring the U.S. Department of Labor to disclose federal contractors’ workforce-composition reports under the Freedom of Information Act. The court held that workforce and demographic data, without information directly revealing services, prices, profits, contractual terms, or similar commercial operations, is not “commercial” information within FOIA Exemption 4. The court did not address the exemption’s confidentiality or other requirements because the commercial-information element was absent.
Topics
Practice areas
Questions Presented
- Whether workforce-composition information in federal contractors' EEO reports constitutes commercial information under FOIA Exemption 4.
- Whether the Department established that the reports described an exchange of goods or services or the making of a profit sufficiently to qualify as commercial information.
- Whether the district court's disclosure order should be affirmed.
Holdings
- Information is commercial under FOIA Exemption 4 if it is either an object of commerce, meaning it is made to be bought and sold or designed to be profitable, or has commerce as its subject, meaning it pertains to business or trade and describes an exchange of goods or services or the making of a profit.
- The bellwether EEO reports do not contain commercial information subject to FOIA Exemption 4 because workforce-composition data, standing alone, does not reveal contractors' production details, services, prices, profits, contractual terms, or similar information describing an exchange of goods or services or the making of a profit.
- Whether information is commercial under FOIA Exemption 4 turns on whether the information itself serves a commercial function or is of a commercial nature; commercial value, competitive harm, or the possibility of commercial repercussions is neither necessary nor sufficient to establish that the information is commercial.
Key quotations
“Information is “commercial” under Exemption 4 if it either is an object of commerce or has commerce as its subject.” (5)
““[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.”” (15)
““That disclosure might cause commercial repercussions” is neither necessary nor “suffic[ient] to show that information is ‘commercial’ under Exemption 4.”” (16)
Factual background
The Center for Investigative Reporting requested several years of consolidated EEO reports filed by federal contractors with the Department of Labor. The reports contained employee counts in ten general job categories and demographic information concerning race, sex, and ethnicity. The Department disclosed reports from non-objecting contractors but withheld 16,755 reports from 4,141 objecting contractors under FOIA Exemption 4, asserting that the workforce-composition information was confidential commercial information. The district court selected bellwether contractors and ordered disclosure after concluding that the reports did not contain commercial information.
Procedural history
The Center requested consolidated workforce-composition reports filed by federal contractors between 2016 and 2020. The Department withheld reports from objecting contractors under FOIA Exemption 4. The district court used five bellwether contractors for cross-motions for summary judgment, concluded that the reports did not contain commercial information, and ordered disclosure. The Department appealed.