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U.S. Equal Employment Opportunity Commission



XI. Summary of Exemptions

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 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 to third parties prior to the institution of a proceeding under Title VII or the ADA involving such information. Section 709(e) also specifically prohibits disclosure of EEO survey reports prior to the institution of a proceeding under Title VII. Commission employees who do so 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:

  • Any Title VII or ADA charge file information requested by anyone other than the Charging Party or the Respondent to the charge, such as the charge file or information concerning the existence of charge files.
  • Title VII or ADA information requested by the Charging Party or the Respondent after the time limitation for filing a lawsuit has expired and no lawsuit has been filed.
  • References to other Title VII or ADA charges in the charge file.
  • Information submitted by unsuccessful bidders for contracts with the EEOC.

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 12,600 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:

  • Investigative Memorandums.
  • Recommendations, opinions, analysis, and conclusions that are deliberative in nature.
  • Predecisional deliberative memorandums analyzing the merits of the case.
  • Codes signifying the EEOC’s predecisional assessment of the merit of a case.
  • Documents that meet the requirements of attorney-client privilege or attorney work product.

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, phone and social security numbers and medical information contained in personnel files. Information withheld pursuant to the Exemption 6 includes, but is not limited to:

  • Personnel documents of EEOC employees such as performance appraisals, home addresses and phone numbers, social security numbers, health insurance coverage, and non job-related affiliations.
  • Personnel documents of third parties in agency charge files which would result in an invasion of personal privacy.

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:

  • Any charge files requested by the Charging Party or the Respondent where the Commission has not terminated all of its proceedings.
  • Respondent access to the charge file during the 90-day notice of right to sue period, unless the Charging Party has filed suit on the charge.
  • Any charge files involved in cases that the Commission is litigating or considering litigating.

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:

  • Individuals’ home addresses and home telephone numbers, if not known to the requester.
  • Social Security numbers and other personal information from charge files.
  • ADEA and EPA charge files requested by third parties.
  • ADEA and EPA charge files requested by the Respondent while the 90 day Notice of the Right to Sue period is pending, unless the Charging Party has already filed suit.

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:

  • Confidential Witness Statements.
  • Any references that would identify confidential witnesses. Documents must be marked confidential by the investigator or the Commission.

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 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.