U.S. District Judge Kandis Westmore ruled that the Supreme Court’s decision on the Food Marketing Institute v. Argus Leader Media does not apply to a request for federal contractors’ diversity data or EEO-1 reports.

In January 2018, Center for Investigative Reporting (CIR) journalist Will Evans requested EEO-1 reports from the California Department of Labor (DOL). But the DOL invoked Exemption 4 of the Freedom of Information Act (FOIA) and waited for the Supreme Court’s decision on the Argus Leader case before responding to Evans’ request. In this case, Justice Neil Gorsuch ruled that “information communicated to another remains confidential whenever it is customarily kept private, or at least closely held, by the person imparting it.” 

In Judge Westmore’s decision, she explained that EEO-1 reports do not contain financial or commercial information protected under Exemption 4 of the FOIA. She also said the DOL failed to show how the release of the information could cause any “foreseeable harm” to companies involved.

CIR general counsel Victoria Baranetsky said Judge Westmore’s decision is a victory for freedom of the press on multiple fronts. She added that this is probably the first Exemption 4 case where the judge held that the government failed to meet the foreseeable harm test.

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