Tuesday, July 1, 2008
The D.C. Circuit issued this opinion last week in The Venetian v. EEOC, concerning the EEOC's policy of disclosing confidential commercial employer information without notice under the ADEA. Although the Commission's rule is somewhat unclear, it appears that the Commission can release information either under its regulations implementing the Freedom of Information Act or its regulations implementing the Privacy Act. The regulations implementing FOIA require prior notice to the party whose confidential commercial information will be released, while the regulations implementing the Privacy Act do not.
These two rules created an odd situation in which the Commission had to notify an employer before releasing confidential information if there was a formal FOIA request, but did not have to if the Commission simply decided on its own to release the information. The Court of Appeals found that maintaining these parallel, inconsistent, and unreconciled policies was arbitrary and capricious under the Administrative Procedure Act. The court did not strike down the policy, though, holding that
We do not say the disclosure policy is necessarily contrary to law; perhaps the EEOC can yet supply a reasoned reconciliation of Compliance Manual § 83.1 and its regulations governing FOIA requests, preferably accompanied by a definitive explanation of exactly when each applies. Until then, however, the agency may not maintain its policy to Venetian’s detriment. Venetian is entitled to an injunction against the release of its confidential information in any manner other than that prescribed in the Commission’s FOIA regulations.
I'm in favor of full disclosure as a general matter, because I think that more information about employment practices and allegations of discrimination are necessary to create the kind of transparency that would allow our enforcement system to operate, as I've argued here. But I can see the need to protect some kinds of information, for example when its release would reveal trade secrets or strategic planning. It seems that prior notice for this kind of information is a good way to give parties a chance to make the case that the information falls into those narrow categories. At the same time, the EEOC shouldn't be required to defer to the employer's classification of the documents and should be allowed to assess for itself whether the information really is commercially sensitive. Still, prior notice does not seem to much of a burden.