FOIA Advisor

Q&A: Discriminating against me, EEOC?

Q&A (2019)Allan BlutsteinComment

Q. EEOC denied my FOIA request for my own case. It said cases are not public record, and only become public record if a lawsuit is filed in federal court. The response cited Exemption 3 and the Civil Rights Act of 1964. How can I get a copy of my own file?

A. The agency’s response is consistent with the public guidance EEOC provides to FOIA requesters (quoted below) -- i.e., charging parties have a narrow window to access their files prior to filing a discrimination lawsuit. Once that time period expires, those files are inaccessible until a lawsuit is filed.

5. Can my request for a copy of my charge file denied?

Yes. The two most common reasons for denying a request are:

  • If you request the file before EEOC has completed its investigation and issued a notice of right to sue, the request will be denied pursuant to exemption (b)(7)(A) of the FOIA. This exemption allows us to deny a request to prevent interference with an ongoing proceeding. Our concern is that the premature release of documents while the file is open may interfere with the EEOC investigation; or

  • If you received a Notice of Right To Sue but did not use it within 90 days to access your file or to file suit, the request will be denied pursuant to exemption (b)(3). After the time to file a lawsuit expires, the CP is considered a member of the public. Sections 706(b) and 709(e) of Title VII of the Civil Rights Act of 1964, as amended, (Title VII), Section 107 of the Americans With Disabilities Act (ADA) and Section 206 of the Genetic Information Nondiscrimination Act (GINA) prohibit disclosure of charge files to members of the public. If you request a file after the NRTS has expired, you will be asked to present a copy of your court complaint, so that we can verify that we may disclose the file to you.