For all you employment litigators, we just learned that you don’t have to file a Freedom of Information Act (FOIA) request with the Equal Employment Opportunity Commission (EEOC) in order to get its file on a plaintiff’s charge of discrimination! What?! Our (admittedly somewhat limited) world has been rocked!
As you may know, before someone can bring a lawsuit for discrimination or harassment against their employer, they must file a charge of discrimination with the EEOC. When defending an employment discrimination lawsuit, one of our standard actions is to file a FOIA request with the EEOC to get their investigative file on that person’s charge. (There are often all kinds of interesting, relevant nuggets of information in the file.)
But what happens is that we send off the request and then – we wait. And wait. And wait some more. Because the EEOC was already pretty backlogged on FOIA requests. (Technically speaking, it’s supposed to respond within 20 working days, with a possible 10-day extension, but I don’t think we’ve ever seen that happen.) And to make things worse, the EEOC just recently announced that, “Given the large number of requests received during the five-week government shutdown and our inability to process FOIA requests during the shutdown, there may be a delay in fulfilling your request.” (Aaargh!)
So one of our associates called the EEOC to chase down a FOIA request that had been sent a loooooong time ago. The EEOC attorney in the FOIA office informed our associate that, in the future, we should file an information request under Section 83 as opposed to FOIA in order to get information contained within charge files. According to the EEOC attorney, Section 83 requests are processed more quickly because there are less administrative hoops for the EEOC to jump through.
So what is Section 83? It’s the section within the EEOC Compliance Manual that governs the disclosure of material within a charge file. Under this section, written requests can be made by a Respondent/employer if it is a named defendant in a lawsuit.
The last question of this EEOC FAQ explains the difference between the two requests:
Section 83’s special disclosure rules only apply to requests for disclosure of investigatory employment discrimination charge files…. Section 83 is another means for aggrieved parties (persons on whose behalf a charge is filed), charging parties (individuals who file charges), respondents (entities that the charges are filed against), and their attorneys to access charge files after the Commission has completed its processing of a charge. Section 83 is a simpler means, with few formal requirements, for gaining access to your charge file.
FOIA applies to all types of agency records, including charge files. FOIA requests must be processed in accordance with the statutory dictates of the FOIA and EEOC regulations. As an illustration, EEOC regulations require that the request be identified as a “FOIA Request” on the envelope or other cover, and the FOIA specifically requires that federal agencies inform the requester in writing of the amount of information withheld, the exemption used, and how the exemption applies to the information withheld.
As with FOIA, Section 83 provides for “sanitizing” of the file. It generally seems that the same kinds of information will be withheld – attorney-client privileged information, attorney work-product, investigator memos, confidential witness statements, company confidential information, etc. But under FOIA, the EEOC has to tell you what is withheld; under Section 83, it does not. So we suppose that one potentially significant difference is that you know what you’re NOT getting in response to a FOIA request. Under Section 83, you’ll see if information is redacted from a document, but if the EEOC withholds an entire document, you may not know that you didn’t get it. And also, under FOIA, you have the right to appeal the withholding of a particular document or information – not so under Section 83. The EEOC makes this point in its FOIA webpage.
So, after our initial excitement, perhaps Section 83 may not be quite as useful as a FOIA request (unless speed is of the essence, for whatever reason). Knowing what additional information exists – even if we can’t get it – can be useful in defending a lawsuit and developing a discovery strategy. Frankly, in most cases, nothing unusual or unexpected is being withheld – but do we want to take a chance in that one case where it might have made a difference?
Some of you may ask, why not file both? And yes, that’s an option, if you want the file sooner rather than later, but still want to know what was withheld.
Anyway, something to ponder.