Stephanie D. Garner
Assistant Legal Counsel/FOIA Public Liaison
EEOC
Office of Legal Counsel
1801 L Street, NW, 6th floor
Washington, DC 20507
(202) 663-4640
(202) 663-7026 (TTY)
(202) 663-4639 (fax)
FOIA@eeoc.gov (e-mail)
A paper copy of the report may be requested by submitting a written request to:
Stephanie D. Garner
Assistant Legal Counsel/FOIA Public Liaison
EEOC
Office of Legal Counsel
1801 L Street, NW, 6th floor
Washington, DC 20507
(202) 663-4640
(202) 663-7026 (TTY)
(202) 663-4639 (fax)
FOIA@eeoc.gov (e-mail)
FOIA requests should be made in accordance with the Commission’s regulations at 29 C.F.R. 1610.7. The regulations can be accessed on the World Wide Web at: http://www.eeoc.gov/foia/1610.html
See 29 C.F.R. 1610.4 and the agency’s FOIA web page at http://www.eeoc.gov/foia/contacts.html for the EEOC FOIA contacts.
The average response time ranges were 10-25 working days.
The majority of fiscal year 2007 Freedom of Information Act (FOIA) requests received by the Commission were for materials contained in the Commission’s investigative case files that involved charges of discrimination filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, the Age Discrimination in Employment Act, 29 U.S.C. §§621-633, the Equal Pay Act, 29 U.S.C. §206(d), and the Americans with Disabilities Act, 42 U.S.C. §§12101-213. Sections 706(b) and 709(e) of Title VII, 42 U.S.C. §§2000e-5(b) and 8(e), and §107 of the ADA, 42 U.S.C. §12117, prohibit Commission employees from making public Title VII or ADA charges, conciliation materials, required reports and case file information. In certain instances, parties to the charge are entitled to access to the disclosable portions of the charge file. Examples of non-disclosable material in charge files are discussed in detail in Section XII: Report on FOIA Executive Order Implementation.
Appeal -- a request to a federal agency asking that it review at a higher administrative level a full denial or partial denial of access to records under the Freedom of Information Act, or any other FOIA determination (e.g., a matter pertaining to fees).
The exemption 3 statutes relied on by the Commission in FY 2007 were §§706(b) and 709(e) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-5(b) and 8(e), and §107 of the ADA, 42 U.S.C. §12117. These sections prohibit Commission employees from making public Title VII or ADA charges, conciliation materials, required reports and case file information.
The Commission’s use of exemption 3 has been upheld by the courts. The landmark case supporting the Commission’s position is EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981). There was no litigation involving the Commission’s use of this exemption in FY 2007.
EEOC FOIA regulations can be accessed on the World Wide Web at:
http://www.eeoc.gov/foia/1610.html
EEOC PA regulations can be accessed on the World Wide Web at:
http://www.eeoc.gov/foia/1611.html
The Commission did not supplement/modify its report in fiscal 2007.
The Commission’s Fiscal Year 2005 Agency Improvement Plan (Plan) contained six areas selected for review and six areas identified for improvement. Information concerning established time milestones only refers to static time milestones. Several of the time milestones require continual review and revision. The Plan is attached to this report, and a link to the website is provided at section XII.G., infra.
The Commission met all time milestones established in the Agency Improvement Plan.
The EEOC has established one FOIA Requester Service Center as required by Section 2 of the Executive Order, allowing for contact via telephone, e-mail, fax, postal mail and tty. The Center is staffed by five EEOC employees, including one FOIA Public Liaison.
The FOIA provides the public access to all federal agency records (or portions of those records), except for those records that are withheld under nine exemptions and three exclusions.
The exemptions authorize federal agencies to withhold information covering: (1) classified national defense and foreign relations information, (2) internal agency rules and practices, (3) information that is prohibited from disclosure by another federal law, (4) trade secrets and other confidential business information, (5) inter-agency or intra-agency communications that are protected by legal privileges, (6) information whose disclosure would invade someone's personal privacy, (7) information compiled for law enforcement purposes, (8) information relating to the supervision of financial institutions, and (9) certain geological information. The three exclusions, which are not used by the Commission, pertain to especially sensitive law enforcement and national security matters. Even if information may be withheld under the FOIA, the EEOC still may disclose it as a matter of administrative discretion if disclosure is not prohibited by any law and would not cause any foreseeable harm. A summary of the exemptions follows:
EXEMPTION 1 - Exemption 1 allows for the withholding of national security information concerning the national defense or foreign policy that has been properly classified in accordance with the substantive and procedural requirements of the current national security classification executive order, Executive Order 12958, signed by President Bush on March 25, 2003. EEOC does not use this exemption.
EXEMPTION 2 - Exemption 2 exempts records from mandatory disclosure that are “related solely to the internal personnel rules and practices of an agency.” Examples of information routinely withheld under Exemption 2 are rules relating to parking facilities, regulation of lunch hours, performance standards, sick leave policy, and similar types of information. Use of this exemption has increased with recent concerns regarding homeland security. EEOC very rarely uses this exemption.
EXEMPTION 3 - Exemption 3(a) allows for the withholding of information prohibited from disclosure by another statute. EEOC routinely uses this exemption to deny access to Title VII and ADA charge files when the requester is not a party to the charge and to withhold EEO survey reports. Sections 706(b) and 709(e) of Title VII and Section 107 of the ADA specifically prohibit disclosure of Title VII and ADA charge files and EEO survey reports to third parties prior to the institution of a proceeding under Title VII involving such charge, record or information. Commission employees who disclose such information are subject to fine and/or imprisonment. Exemption 3(b) prohibits agencies from releasing any proposal submitted by a contractor in response to a competitive contract. Information withheld pursuant to the Exemption 3 includes, but is not limited to:
EXEMPTION 4 - Exemption 4 protects from disclosure information that would reveal “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” EEOC uses this exemption on occasion. When the EEOC receives a FOIA request for trade secrets or confidential commercial or financial information, it is required by Executive Order 12600 and its regulations to notify the submitter of the information of the FOIA request and permit the submitter an opportunity to object to disclosure of the record. The requester is advised of the submitter notification.
EXEMPTION 5 - Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency” from disclosure to the public. EEOC routinely uses this exemption to deny access to internal documents that reflect the internal predecisional deliberations, recommendations, analyses, assessments, and opinions of Commission employees. We also use this exemption to deny access to attorney work product information. Information withheld pursuant to the Exemption 5 includes, but is not limited to:
EXEMPTION 6 - Exemption 6 protects personal privacy interests in records contained in personnel, medical, and similar files when disclosure of such records would constitute a clearly unwarranted invasion of personal privacy. EEOC routinely uses this exemption to deny access to information such as home addresses, third party names, telephone and social security numbers and medical information contained in personnel files. Information withheld pursuant to the Exemption 6 includes, but is not limited to:
EXEMPTION 7 - Exemption 7 has six sub-parts and is a special exemption that only applies to law enforcement agencies. EEOC is a law enforcement agency. We routinely use certain sub-parts of this exemption. Exemption 7 allows for the withholding of “records or information compiled for law enforcement purposes,” with the limitations discussed below:
EXEMPTION 7(A): Permits the withholding of EEOC records or information that were compiled for law enforcement purposes if the release of such records “could reasonably be expected to interfere with enforcement proceedings.” EEOC routinely uses this exemption to deny access to open charge files and cases in litigation. Information withheld pursuant to the Exemption 7(A) includes, but is not limited to:
EXEMPTION 7(B): Permits the withholding of EEOC records or information that were compiled for law enforcement purposes if the release of such records “would deprive a person of a right to a fair trial or an impartial adjudication.” EEOC does not use this exemption.
EXEMPTION 7(C): Permits the withholding of EEOC records or information that were compiled for law enforcement purposes if the release of such records “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” EEOC routinely uses this exemption in conjunction with Exemption 6. Information withheld pursuant to the Exemption 7(C) includes, but is not limited to:
EXEMPTION 7(D): Permits the withholding of EEOC records or information that were compiled for law enforcement purposes if the release of such records “could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.” EEOC uses this exemption to deny access to confidential sources that have provided information during the investigation of allegations of discrimination. Information withheld pursuant to the Exemption 7(D) includes, but is not limited to:
EXEMPTION 7(E): Permits the withholding of EEOC records or information that were compiled for law enforcement purposes if the release of such records “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” EEOC very rarely uses this exemption.
EXEMPTION 7(F): Permits the withholding of EEOC records or information that were compiled for law enforcement purposes if the release of such records “could reasonably be expected to endanger the life or physical safety of any individual.” EEOC very rarely uses this exemption.
EXEMPTION 8 - Exemption 8 protects from disclosure matters that are “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.” EEOC does not use this exemption.
EXEMPTION 9 - Exemption 9 allows for the withholding of “geological and geophysical information and data, including maps, concerning wells.” EEOC does not use this exemption.
EXCLUSIONS - The FOIA also contains three specific exclusions regarding criminal records and certain law enforcement records held by the Federal Bureau of Investigations. The EEOC does not maintain or possess any records specifically excluded from coverage.
January 27, 2006 to July 21, 2006
Consultations Received From Other Agencies During FY07 | Consultations Received From Other Agencies That Were Processed by Your Agency During FY07 (includes those received prior to FY07) | Consultations Received From Other Agencies That Were Pending at Your Agency as of October 1, 2007 (includes those received prior to FY07) |
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0 | 0 | 0 |
Calendar Year | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | 2006 | 2007 |
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Requests |
The EEOC Report and Plan on Improving Agency Disclosure of Information is attached and can also be accessed on the World Wide Web at: http://www.eeoc.gov/foia/foiaplan.html
Footnotes
1This figure is 86 less than reported on the FY 2006 report. The EEOC is in the process of converting from a manual FOIA tracking system to an electronic tracking system. As a result of the conversion, our Atlanta, Dallas, Los Angeles and Philadelphia offices reported figures that were different from the figures they submitted for inclusion in the FY 2006 report. All of the offices reconciled the data in the electronic system, but were unable to correct the discrepancies to match the figure submitted for the FY 2006 report.
2Section 83 of the EEOC Compliance Manual provides for access to relevant case files by charging parties, aggrieved persons on whose behalf a charge has been filed, and entities against whom charges have been filed. 29 C.F.R. §1610.17(d). FOIA requests processed by EEOC field offices are subject to review by the Regional Attorneys. FOIA requests that are converted to Section 83 can usually be processed more expeditiously, and some FOIA requesters are amenable to converting their requests to Section 83 for this reason.
This page was last modified on April 15, 2008.