In the course of an action to compel federal officials to comply
with Executive Order No. 11246 (which requires Government
contractors to ensure nondiscriminatory employment practices), the
District Court entered an order requiring the General Services
Administration (GSA) to disclose information reporting on
affirmative action programs and related matters filed with the GSA
by Government contractors represented by the applicant. Applicant
sought a stay of that order after having been denied a stay by the
Court of Appeals. Even though there is a substantial question
whether the information is privileged by virtue of § 709(e) of the
Civil Rights Act of 1964, the application must be denied because
applicant has failed to show that the irreparable injury which
allegedly would result from disclosure is imminent.
MR. JUSTICE DOUGLAS, Circuit Justice.
This application for stay of the discovery order by the District
Court seemed to me, when I studied it at Goose Prairie, Wash., to
present a series of very important and new questions under the
Freedom of Information Act, 5 U.S.C. § 552, for which guidelines
would be desirable. Thus, I as initially disposed to issue the stay
so that, in due course, new guidelines could be established. But
the questions presented involved so many complexities that I felt
the application should be put down for oral argument so that all
parties could be heard.
The Legal Aid Society of Alameda County, Cal., is suing various
federal officials in Federal District Court, seeking mandamus to
remedy alleged noncompliance with Executive Order No. 11246, 30
Fed.Reg. 12319
Page 423 U. S. 1310
(1965), as amended, 3 CFR 169 (1964). That Order requires
employers holding contracts with the Federal Government to ensure
nondiscriminatory employment practices through affirmative action
programs. Applicant, the United States Chamber of Commerce, has
been permitted by the District Court to intervene on behalf of
various contractors with the Federal Government. Pursuant to a
Legal Aid request, the District Court ordered disclosure by the
General Services Administration (GSA) of information filed with it
by the various contractors,
Legal Aid Society v. Brennan,
No. C-70282 (ND Cal., filed Mar. 26, 1975). The information
comprises ethnic composition reports (EEO-1), affirmative action
program reports (AAP), and compliance review reports (CRR).
Applicant's petition for a stay of the District Court's discovery
order was denied by the Ninth Circuit without opinion,
Legal
Aid Society v. Brennan, Civ. No. 75-1870 (filed Aug. 4, 1975),
as was its petition for rehearing and suggestion for rehearing en
banc,
Legal Aid Society v. Brennan, supra, (filed Sept. 2,
1975).
In the District Court's opinion below, much is made of the
policy of the Freedom of Information Act which requires access to
official agency information. The GSA here is willing to disclose
the requested information. But, as the District Court also
observed:
"[T]he production here sought is not pursuant to the Act, but
part of a legitimate discovery effort by plaintiffs. . . . The only
legitimate objections one could raise to preclude discovery are,
under Fed.R.Civ.P. 26(c), claims of privilege."
While I agree with the District Court's analysis of the posture
of Legal Aid's request for information, I part company with the
court when it neglects consideration of the existence of a
privilege against discovery protecting those whom the applicant
represents. While the Freedom of Information Act creates no
privileges,
Verrazzano
Page 423 U. S. 1311
Trading Corp. v. United States, 349 F. Supp. 1401
(Cust.1972), neither does it diminish those existing.
In my mind, a substantial question exists as to whether the
parties represented by the applicant enjoy a privilege as to the
information contained in the EEO-1's, AAP's, and CRR's. The Equal
Employment Opportunity Commission (EEOC) is authorized to obtain
the information contained in these reports, under §§ 709(c) and (d)
of the Civil Rights Act of 1964, 78 Stat. 263, as amended, 42
U.S.C. §§ 2000e-8(c) and (d) (1970 ed., Supp. III). However, §
709(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(e),
provides in part:
"It shall be unlawful for any officer or employee of the
Commission to make public in any manner whatever any information
obtained by the Commission pursuant to its authority under this
section prior to the institution of any proceeding under this
subchapter involving such information."
Accordingly, information contained in the EEO-1's, the AAP's,
and the CRR's, which are prepared from the EEO-1's, is arguably
protected from disclosure by § 709(e).
See H. Kessler & Co.
v. EEOC, 472 F.2d 1147, 1152, 1153 (CA5 1973) (en banc)
(majority and dissenting opinions).
To be sure, the information in the AAP's and the EEO-1's in this
case was not obtained directly by the EEOC. Rather, the information
was apparently collected by a Joint Reporting Committee of both the
EEOC and the federal compliance agency (in this case, GSA) under
Executive Order No. 11246. But the information in the EEO-1's was
obtained, in part, on behalf of the EEOC,
see 41 CFR §
60-1.7(a)(1), and much of the information contained in the AAP's is
essentially in the nature of that protected by § 709.
Compare 41 CFR pt. 60-2
with 42 U.S.C. §
2000e-8(c) (1970 ed., Supp. III). Indeed, certain policy
considerations
Page 423 U. S. 1312
underlying the regulations precluding release by the GSA of
information contained in the AAP's are akin to those motivating the
confidentiality implemented by § 709.
Compare 41 CFR §
60-40.3(a)(5)
with H. Kessler & Co., supra at 1150. In
view of the foregoing, though some of the information involved here
neither was obtained, nor is to be disclosed, by the EEOC, the
congressional purpose of confidentiality, protected by criminal
sanctions, is not to be lightly circumvented.
Despite these questions on the merits, there is the further
question whether interim relief is necessary. Applicant will not
suffer irreparable injury from disclosure of the documents, because
the District Court has entered a protective order permitting only
attorneys for the Legal Aid Society to examine the assertedly
privileged documents. Only one of the reasons advanced by the
applicant may justify granting a stay despite the District Court's
protective order, and it is meritless. Applicant contends that
disclosure of the materials will enable Legal Aid to compel the
GSA, by litigation, to conduct reviews for compliance with
Executive Order No. 11246. This, in turn, will result in
ineligibility of the affected contractors for federal contracts
pending GSA review, an asserted denial of due process because the
affected contractors will have no opportunity to defend the
adequacy of their affirmative action programs in the litigation
between the GSA and Legal Aid. Applicant also asserts that this
denial of due process causes the contractors irreparable injury.
Apart from other serious difficulties with this argument, it is
enough to note that the claimed irreparable injury is far from
imminent since the GSA has yet to indicate that it will undertake a
compliance review and the District Court has entered no order to
that effect. Since applicant fails to show any imminent harm, on
further study and consideration, I have decided to deny the
stay.