The Death Knell That Wasn't: Public Access to Federal Contractor Employment Data After Argus Leader Media

Abstract

Federal government contractors collect hundreds of billions of taxpayer dollars annually and employ roughly a quarter of the U.S. workforce. They also provide important public goods and government services. But what, exactly, does the public have a “right to know” about federal contractors, and how can it access this information? These two questions are especially important in the context of employment law. Most federal contractors are bound by an executive order that prohibits them from discrimination in employment and requires them to submit employment-related data to the federal agency responsible for monitoring compliance and enforcing the law. For decades, this data has been subject to Freedom of Information Act (FOIA) requests filed by civil rights attorneys, the media, and other interested members of the public. However,
contractors opposing the release of their employment data have argued that it is shielded from public disclosure by FOIA’s Exemption 4, which protects confidential commercial or financial information submitted to the government by private persons.

In this Article, I explain the conflicting effects of the FOIA Improvement Act of 2016 (FIA), a bipartisan effort to increase government transparency, and Food Marketing Institute v. Argus Leader Media, a 2019 Supreme Court decision that overturned the disclosure-friendly test agencies applied to determine whether Exemption 4 covered information requested under FOIA. In the wake of Argus, some legal commentators were quick to claim that the erasure of the test sounded the death knell for FOIA requests for private information, including federal contractor employment data. I argue that the fallout from Argus is not inevitable. Rather, by undermining case law suggesting agencies do not have discretion to release information covered by Exemption 4, Argus tacitly restores such discretion. Thus, agencies must apply a standard codified in the FIA to covered information. Ironically, applying the FIA’s standard to covered information has the same effect as applying the preArgus test that agencies used to determine whether Exemption 4 covered the information. While Argus does not discuss the FIA because the FOIA request at issue was filed in 2011 and the FIA is not retroactive, the decision changes how agencies should interpret and apply the FIA’s disclosure-friendly standard in Exemption 4 cases.

Keywords: FOIA, Exemption 4, Confidential, Employment, Discrimination, Federal Contractor, Transparency, Trade Secrets Act, Supreme Court, Civil Rights