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SECTION 83 DISCLOSURE OF INFORMATION IN CHARGE FILES

83.1   Introduction – This section covers the disclosure rules referenced at 29 CFR § 1610.17(d) that apply to requests for disclosure from charge files by aggrieved parties, respondents, and their attorneys. The section applies to Title VII, ADA, ADEA, EPA and GINA files during any period when an aggrieved person may still bring suit or when such a suit is pending. Process any request labeled “FOIA request” as such unless the requester agrees that it can be handled under § 83 instead. Title VII §§ 706(b) and 709(e) and ADA § 107 prohibit EEOC from “making public” information obtained under its investigative authority before a Title VII/ADA/GINA lawsuit is filed. However, providing information to parties from their files is not “making public” as meant by those sections. Similarly, neither ADEA nor EPA prevents disclosures of information from charge files to parties.

(a)   Disclosures to Congressional Staff – A congressional staff person who asks to review or obtain copies of file materials on behalf of either party will often prefer, when advised of the option, that EEOC provide a report on the party's concerns. If the person continues to ask for the file, explain that the Privacy Act applies. Ensure that the request is on behalf of a party to the charge entitled to receive the information sought (such as a request on behalf of the respondent made after the charging party has sued). As needed, obtain follow-up confirmation by phone, letter, fax or email. Refer the person to the Office of Communications and Legislative Affairs if problems arise or if s/he does not accept the office's replies.

(b)   Disclosures of Information from Other Federal Agencies, Files in HQ Before disclosing items obtained from another federal agency, ask the agency if it has any disclosure concerns. If it has none, handle the request under this section. If a file has been sent to headquarters, coordinate the request with the headquarters office that has the file.

(c)   Exceptions – This section does not apply to subpoenas, court orders or other demands covered by 29 CFR §§ 1610.30 -.36.

83.2   Written Request Required for File Disclosures – Persons listed in § 83.3, in order to obtain a copy of their file, must make a signed written request by mail or fax, or a request by email from an email address documented in the file or otherwise verified as the requester's (or attorney's) email address. (If the requester wants a representative to visit the field office to pick up requested documents, this must be included in the original or a successive written request.)

83.3   Persons to Whom Disclosures May Be Made – First follow § 83.4 to sanitize the file.

(a) Aggrieved Persons and Their Attorneys or Agents – In addition to the individually-harmed charging party, this category includes:

(1)   aggrieved persons covered by a Commissioner charge or an "on behalf of" third party charge;

(2)   Title VII/ADA/GINA claimants who qualify as a ‘complaining party’ under the 1991 Civil Rights Act;

(3)   ADEA/EPA aggrieved persons who have a right to sue;

(4)   the person, organization or agency filing on behalf of aggrieved persons, when one or more requesting aggrieved person has designated the "third party" charging party in writing as their agent for this purpose; and

(5)   their attorneys (including those considering cases under § 81, Attorney Referral Program).

(See also §§ 83.5(a)-(d) for a more detailed discussion of factors relevant to Title VII/ADA/GINA multiple, third-party, Commissioner charge files and ADEA/EPA charge files.)

The charging party or other aggrieved person must have received a Notice of Right to Sue that has not expired. Deny requests when a Notice of Right to Sue was received and more than 90 days have passed without suit being filed, unless the person arguably has a continuing right of judicial action (e.g., by tolling or waiver of the 90-day period). Persons who are contesting the validity of a waiver of claims, who are considering suit or who have sued, are persons to whom disclosure may be made.

(b)   Respondents and Their Attorneys – Honor a respondent's Section 83 request only if it is a named defendant in a pending private lawsuit based on the charge.

83.4   Information Not To Be Disclosed – Remove or sanitize the following items before disclosure (resolve doubts by consulting the legal unit or the Office of Legal Counsel):

(a)   Intra-Agency and Inter.Agency Memoranda and Attorney Work-Product

(1)   Remove intake notes/memos analyzing the merits of charges, their priority charge category, or the scope of proposed investigations. Remove investigator's reports/memos or other notes, memos or items prepared by EEOC or another agency that would reveal strategy, recommendations, impressions or deliberative processes relating to any aspect of case handling.

(2)   Remove items that identify the charge’s assessed priority charge category, that state whether a category A charge is enforcement plan or non-enforcement plan, or that state the reasons for the category assessment or designation.

(3)   Remove attorney work-product such as memos or notes from, or prepared under the direction of, the Regional Attorney, the Offices of General Counsel/Legal Counsel, or the Department of Justice.

(b)   Items Naming Other Respondents or Employers – Remove information identifying other respondents or other employers, such as items showing that the charging party filed charges against other employers, deferral letters listing other charges, or EEO-reports on other employers put in the file for comparison that are not sanitized to protect other employers’ identities.

(c)   Material Pertaining to Settlement/Conciliation or Mediation – Remove only information on settlement/conciliation offers received from one party that were not conveyed to the other, such as a charging party's statement of minimum settlement made at intake or a settlement offer by the respondent that EEOC held in abeyance and never conveyed to the charging party. Under the Alternative Dispute Resolution Act of 1990, as amended, and EEOC policy, separate files set up for mediation purposes are not part of charge files for purposes of Section 83 disclosure.

(d)   Medical Information – All medical information which the requester initially provided may be disclosed to that requester.

(1) Sensitive Medical Information – Remove all sensitive items on the charging party or others, provided by persons other than the requester, that are not relevant to issues raised in the charge. This includes items that identify 'hidden' or non-obvious injuries, impairments, medical conditions, short-term pregnancies, or disabilities. When such items on persons other than the charging party are relevant to charge issues, delete their names and other personal identifying information before disclosure to protect their privacy.

(2) Non-sensitive Medical Information – Relevant, non-sensitive medical information (such as names of persons injured on the job, persons with obvious impairments, injuries, or pregnancies; the length of absences; medical conditions that are common knowledge; and reasonable accommodations that were made) may be disclosed, without regard to the guidelines in (1) above, if no invasion of personal privacy will result, such as when the information is generally known or has been reported in the public domain.

(e)    Confidential Commercial Information – Withhold information previously and in good faith identified by the submitter as trade secrets or confidential commercial information barred from disclosure by the Trade Secrets Act. The submitter should identify such information by including, whenever possible, a statement or certification from an authorized representative of the company that the information is in fact trade secrets or confidential commercial information and has not been disclosed to the public. If the submitter did not identify information as trade secrets or confidential commercial information, but the information is of such a nature that the EEOC office reasonably believes that disclosure of that information would cause substantial competitive harm to the submitter, such information should not be disclosed.

(f)   Confidential Witness Information – Withhold any information concerning the identities of, and statements by, witnesses who have given confidential statements or EPA complainants. Delete their names or any identifying information wherever it appears in the file. (See §§ 23.9-.10 regarding recording and filing confidential statements.)

(g)   Identity of Persons on Whose Behalf a Charge Was Filed – EEOC may not disclose the identities of persons on whose behalf a charge is filed who have asked that their identity as complaining parties remain confidential (see 29 CFR § 1601.7(a)). Remove Form 151, Third Party Certification of Charge, or its equivalent; affidavits in which such persons give approval of the filing; and all other items containing their names, addresses or other information that would tend to disclose their identity as complainants. (For example, if an affidavit was taken at the time an investigation was initiated, and all other affidavits were taken at a much later time, disclosure of a complainant’s affidavit might tend to disclose his/her identity as a complainant.)

83.5   Multiple, Third-Party, and/or Commissioner Charges

(a)   Multiple or Third Party Title VII/ADA/GINA Charges Involving the Same Respondent – When a charging party files a charge alleging personal harm (whether there are class allegations or not), Title VII, ADA and GINA permit charge file disclosure to that charging party. A charging party’s file may not be disclosed to other charging parties, because they are members of the public with respect to that charge. However, statistics, documents and other information about the respondent’s general practices relevant to several charges that were duplicated and included in each charge file, or that were consolidated in one central investigative file (in addition to the several individual charge files) are ordinarily relevant to a requester’s individual charge and may be disclosed.

(b)   Title VII/ADA/GINA Commissioner Charges – Title VII § 706(f)(1) provides that when a Title VII/ADA/GINA Commissioner charge is dismissed or conciliation fails and EEOC does not file suit, a Notice of Right to Sue will be issued to “any person whom the charge alleges was aggrieved by the alleged unlawful employment practice,” in other words, anyone who is “identified [by EEOC] as a member of the class” (29 CFR § 1601.28(b)(1)). Since class members are made aware of the existence of the charge by way of the investigation and issuance of Notices of Right to Sue, information from Commissioner charge files may be disclosed to any of them who qualify under § 83.3(a). Statistics, documents, or other information relevant to the class member’s case may be disclosed. A charging party or other aggrieved person covered by an individual charge may not gain access to a Commissioner charge file on the same respondent, unless s/he is also a member of that Commissioner charge class or the file consolidation procedures, such as in (a) above, had occurred.

(c)   Title VII/ADA/GINA Letters of Determination – Individual-specific facts in letters of determination issued under (a) or (b) above may only be disclosed to the respondent and the named person(s) to whom they pertain.

(d)   ADEA/EPA Charges – The definition of who qualifies as an aggrieved person for purposes of this section can be more expansive in ADEA cases, compared with Title VII/ADA/GINA, and includes persons who may not have filed their own charges. The purpose of an ADEA charge is to preserve the private suit rights of all persons aggrieved by the matter complained of in the charge, regardless of who filed it (see § 2.4(a)(3)). Under EPA, aggrieved persons may bring collective actions on behalf of all persons similarly situated, without resort to agency process. These principles apply to disclosure of facts related to ADEA/EPA aspects of concurrent charges also alleging Title VII/ADA/GINA issues, to the extent their disclosure is possible under (a)-(c) above.

83.6   Copying and Release of File Materials, Assessment of Fees – Photocopy the materials requested. However, for large files, the requester can be given the option of inspecting the sanitized file and selecting the items to be copied. Assess or waive search and copy fees as guided by 29 CFR §§ 1610.14–15.

(a)   Security of Files, Copies Made by Others – Offices may require requesters to make special arrangements to have copies made by persons other than EEOC (or its contractor’s) staff. Persons granted access to files are not normally permitted to remove files from EEOC's (or its contractor's) premises. District Directors or designees may allow a file to be copied away from the premises in unusual circumstances if proper safeguards are observed to prevent loss or mutilation of the file.

(b)   Issue Non-Disclosure Notice with Pre-Suit Disclosures to Aggrieved Person and Their Attorneys or Agents – Include the following notice on the transmittal that accompanies copies of charge file documents to the requester:

If you have asked for the enclosed documents from your charge file before you have filed a lawsuit based on your charge, by accepting these documents you agree that you will use them only in connection with contemplated litigation and will only show them to persons in a privileged relationship, such as a spouse, clergy, or medical, financial or legal advisor.

(c)    Avoid Delays in Disclosure for Administrative Reasons – Field offices must make every reasonable effort to timely produce requested materials that are disclosable and must avoid creating disclosure delays for administrative reasons. For example, impediments to disclosure such as the one at 29 CFR § 1610.16(b) (delay permitted where requester does not state a willingness in advance to bear all fees) should be avoided as offices set up their local disclosure arrangements. Office directors, Regional Attorneys or their designees have discretion to waive or reduce fees, guided by the provisions set out in 29 CFR §§ 1610.14–16, keeping in mind that, unlike the FOIA, § 83 provides for a less formal, less structured, and more flexible method of disclosure.