Our FOIA Fight for EEO-1 Data (and Why Winning Matters)

shutterstock_39826507

On March 7, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) ultimately agreed to publish two more years (1996 and 1997) of aggregate EEO-1 data in electronic, researchable format by May 1, 2014 and “to begin the process of converting the aggregate EEO-1 data into electronic format for the years from 1966 to 1996 as resources allow.”  Read the EEOC’s recent Appellate Determination here.  The battle to get the EEOC to release this public data, however, is a story worth telling.  And, without public scrutiny, will the EEOC follow through on its data-publication promises?

For over four decades, the EEOC has required employers with 100 or more employees to submit an annual EEO-1 survey of the gender and racial/ethnic composition of their workforces, which provides (in the EEOC’s words) a “rich database for various uses.”  To that end, the EEOC has already made available on its website aggregate EEO-1 data for the years 1998-2012, here.   Recently, EEO Legal teamed up with Dan Kuang, Ph.D. of Biddle Consulting Group to analyze this public, granular database, to measure the pace of progress of women and minorities toward achieving top jobs across industries—i.e., Official/Manager positions in EEO-1 speak.  Our initial analysis yielded startling results: in our march to the top, women’s progress has flat-lined; Asian-Americans are gaining on Whites; and African-Americans have lost ground.

Intellectual (and morbid) curiosity took hold, making us wonder about larger trends over time.  For this one measurement of progress (i.e., attainment of top positions across industries), we wondered whether we could correlate any statistically significant changes with any major regulatory and/or legal enforcement shifts over Title VII’s 50-year history.   We quickly realized, however, that we needed a much larger swatch of data to draw any statistically meaningful conclusions . . .

. . . and hence, our odyssey to obtain this publicly available data from the EEOC under the Freedom of Information Act (FOIA) began.

Overcoming “No Mode”

In late November, after researching online the EEOC’s FOIA process, I called Stephanie Garner, Assistant Legal Counsel at the EEOC overseeing FOIA programs, using the phone number provided; much to my pleasant surprise, Ms. Garner answered the phone.  While describing the nature of our data request, Ms. Garner interrupted, Let me stop you right there.  That data is confidential, she claimed.  Our initially pleasant discussion then turned tense, as I read from passages of the EEOC’s website describing aggregate EEO-1 data as “publicly available.” Later that day, we tendered our initial FOIA request for raw, aggregate EEO-1 data from 1966 (or as early as practicable) to 1998, specifically rebutting the reasons Ms. Garner initially gave for perfunctorily denying it over the phone.  Ms. Garner, we correctly sensed, had switched into “No Mode,” an officious reluctance to serve the public that I observed firsthand among numerous career EEOC personnel during my brief EEOC service (1997-2000).  Sure enough, that SAME day, Ms. Garner’s administrative assistant summarily denied it because our FOIA request listed only an electronic, not physical, address to which to produce the requested electronic data.   No Mode.

Several weeks (and the FOIA deadline) passed.  During this time period, we proposed several FREE options for the electronic transfer of the requested data, without response.  Eventually, after the EEOC’s delinquency hit the three-week mark, I contacted Ms. Garner again by telephone.  Ms. Garner answered, and expressed surprise that I’d not heard from her subordinate, Tracy Smalls, about our FOIA request.  Ms. Garner stated that Ms. Smalls had recommended denying it because the EEOC had made the same information publicly available in its 2011 Report, Indicators over Time.  Another spirited discussion ensued about the difference between DATA and the INTERPRETATION OF DATA, and the many data-gaps in the 2011 Indicators over Time report.  Out of sheer frustration, I probably even blurted out that our FOIA request derived, in part, from the manipulative manner in which Indicators over Time reported EEO-1 data.  At this historic milestone (Title VII’s 50th anniversary on July 2, 2014), I pleaded, EEO researchers and advocates must have access to this data—data exclusively in the EEOC’s possession—to measure our progress and tinker with initiatives that may better advance the march toward EEO.  Apparently unpersuaded, the EEOC issued a written Determination denying our FOIA request based on the Indicators over Time report shortly thereafter.  No Mode again.

FOIA requires requesting parties to first file an administrative appeal before initiating any litigation in U.S. District Court.  To that end, we immediately launched an administrative appeal of this Determination, making clear that we wanted the data, not the fight.  Still, over the next several weeks, the EEOC’s FOIA bureaucracy sent several conflicting letters by email and snail mail that created confusion about whether our FOIA request was in appellate status or was still awaiting a Determination.   During this January, 2014 period, EEOC Commissioner Chai Feldblum also got involved, curiously noting that as a Commissioner, there was probably not a lot she could do, but that she is following our battle.

Then, on January 22, 2014, Ms. Garner issued another Determination with a new way to deny our request.  No Mode again, but with a twist.   According to this Determination, the EEOC has no legal obligation under the Electronic Freedom of Information Amendments Act of 1996 to provide electronic data prior to 1996.   True enough.  For the years 1996 and 1997, however, Ms. Garner determined that EEO Legal Solutions had requested this data for a “commercial purpose” and accordingly, must pay approximately $12K to $15K for EEOC personnel to “digitize” EEO-1 data into electronic, researchable format.

EEO Legal Solutions filed yet another administrative appeal.  The EEOC’s demand for upwards of $15K so that EEOC personnel can make public data electronically available, we argued, amounts to per se evidence that the EEOC has NOT complied with the 1996 electronic amendments to FOIA.  We also pointed out that the conduct of the EEOC’s FOIA personnel violated the letter and spirit of President Obama’s 2009 mandate to federal agencies to err in favor of disclosure, as well as the “Presumption of Openness” expressed in Attorney General Eric Holder’s March, 2009 directives to federal agencies.  We challenged the EEOC to justify its finding that we requested this EEO-1 data for commercial purposes, and referenced other non-attorney academic researchers who have, anecdotally, also tried in vain to wrest this important public information from the EEOC.  And, well, because not all the solutions at EEO Legal Solutions are legal, we threatened to launch a broad-based “Demand the Data” campaign on social media.

And, for all intents and purposes, it worked.  In its recent Appellate Determination, the EEOC agreed to PUBLISH on its website electronic EEO-1 data for the years 1996 and 1997 by May 1, 2014 without charge and “as resources allow,” to begin the process of converting pre-1996 data into electronic, researchable format.  According to the Appellate Determination, the EEOC now “recognize[s] the public interest in having the pre-1996 data available in electronic format.”  For civil rights, affirmative action, and equal employment opportunity geeks (like me), gaining access to more EEO-1 data opens up a world of research possibilities—e.g., to continue measuring how far we’ve come in the march toward EEO, to examine what enforcement initiatives WORK to equalize opportunity at all organizational levels, and to make workplace policy recommendations based on real DATA.

Holding the EEOC to its Publication Promises

Throughout this FOIA odyssey, we reinforced that we wanted the DATA, not the fight, and we got the data.  The FIGHT, however, would have enabled us to obtain a court order that imposes actual timetables on the EEOC for the publication of this EEO-1 data.  By conceding our appeal, the EEOC has made it impracticable, unwise, and largely unnecessary for us to file a FOIA lawsuit in U.S. District Court, the next step in the FOIA enforcement process.  A federal judge would rightfully put teethmarks in my backside for seeking judicial intervention when the EEOC has now agreed to produce more electronic data than the 1996 FOIA amendments technically require.  Unfortunately, without the threat of a lawsuit, we may actually lack LEGAL “teeth” to enforce the EEOC’s data-publication promises.

But, not all “teeth” are LEGAL either.  Through this blog, your interest, and our Twitter updates at #EEOData, we aim to hold the EEOC accountable for delivering on its commitments to publish all EEO-1 data on its website.  Without sharing news about our FOIA fight and micro-victory, no one would have even known about the EEOC’s decision to make more raw, EEO-1 data available for research, and the six months of wrangling it took to get there.  In fact, getting the EEOC to produce this publicly available EEO-1 database—i.e., a database in which the EEOC recognizes a “public interest”—theoretically cost about $20K in attorneys’ fees, grappling with one meritless Determination after another.

Please stay tuned for updates.  We will continue to monitor the EEOC’s website to determine whether the EEOC has kept its promises.  We are also counting on YOU to increase awareness of this powerful database, the struggle to get it, and its many potential, important uses.

 Merrily S. Archer, Esq., M.S.W.,  April 9, 2014