files), and that, in the alternative, portions of those documents should be nondisclosable under exemptions (b)(4) (trade secrets and confidential commercial data) and (b)(6) (personnel records).
Exemption (b)(3) applies to material "specifically exempted from disclosure by statute." Sears argues that Section 709(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(e),
should bar disclosure of its EEO-1 reports. Those reports are sent to the Joint Reporting Committee (JRC), which forwards copies to the appropriate federal compliancy agency for Executive Order No. 11,246 -- in this case the Department of Labor (OFCC) -- and to the Equal Employment Opportunity Commission (EEOC). Sears argues that the JRC is in reality an agent or alter ego of the EEOC because it is composed of personnel from EEOC and funded by the EEOC. Hence disclosure by the JRC, or by any agency receiving information from the JRC,
is barred by Section 709(e).
The difficulty with this argument is that § 709(e) is a criminal statute and must therefore be narrowly read, particularly in light of the requirement of exemption (b)(3) that material be "specifically exempt." And § 709(e), in its terms, applies only to "any officer or employee of the Commission," making public "information obtained by the Commission pursuant to its authority under this section."
The documents in question were obtained under the authority not of § 709, but of Executive Orders 11,246 and 11,375.
And they were collected not by the EEOC, but by the OFCC, which has a function separate and distinct from that of the EEOC.
Nor, for the purposes of this statute, are members of JRC "employees" of EEOC. The OFCC could require reporting forms that differ from EEO-1's, and could route them through separate channels. That it does not do so is for reasons of convenience of both contractor and agency, rather than as a bureaucratic subterfuge. The JRC is a mere collection house that collects documents for and distributes them to the authorized agencies. To the extent that JRC collects information for OFCC pursuant to Executive Order 11,246, it must be deemed an agent of OFCC, not EEOC.
Sears' precise claim was raised, and overruled, in Legal Aid Society of Alameda County v. Shultz, 349 F. Supp. 771, at 775-76 (N.D. Cal. 1972). There, plaintiffs sought release of EEO-1's and AAP's from a government agency that opposed disclosure. The court held that disclosure was compelled by the FOIA, despite § 709(e)
A fortiori, when GSA/OFCC desires to disclose, we hold that § 709(e) does not bar disclosure.
We also note that AAP's, which include EEO-1's,
are required under 41 C.F.R. § 60-2.1 et seq., and not by the EEOC at all. Hence, regardless of whether § 709(e) is read to bar disclosure of EEO-1's by GSA/OFCC, it cannot bar disclosure of AAP's, which include the data in EEO-1's.
Sears also argues that the documents sought were furnished to the government under express and implied promises of confidentiality, and that disclosure should therefore be barred by 44 U.S.C. § 3508(a), 18 U.S.C. § 1905,
and the court's equitable discretion.
Neither statute, however, "specifically exempts" documents from disclosure. Section 3508(a) merely provides that applicable law follows documents as they travel from one agency to another. We have already decided that transfer from JRC to GSA/OFCC is not to be construed as transfer from EEOC to GSA/OFCC. Under the relevant Disclosure Rules, 41 C.F.R. § 60-40.1 et seq., disclosure of EEO-1's and AAP's by GSA/OFCC is authorized by law.
Section 1905, similarly, does not expand the prohibitions of other statutes.
" 18 U.S.C. § 1905 is a criminal statute prohibiting unauthorized disclosure of any information by a federal employee. There is nothing in the section which prevents the operation of the Information Act. It does not fall within the ambit of Exemption (3). M.A. Schapiro v. S.E.C., 339 F. Supp. 467 (D.D.C. 1972); Frankel v. S.E.C., 336 F. Supp. 675 (S.D.N.Y. 1971), rev'd on other grounds 460 F.2d 813 (2d Cir.), cert. denied, 409 U.S. 889, 34 L. Ed. 2d 146, 93 S. Ct. 125 (1972)."