UPDATED: Federal Contractors Have Until October 19 to Object to FOIA Disclosure of EEO-1 Reports

By: Joyce Tong Oelrich, Zohra Tejani, Daniel J. McCoy

Federal contractors who have filed an Employment Information Report (EEO-1) Type 2 Consolidated between 2016-2020 and wish to object to the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) release of their EEO-1 in response to a FOIA request, must submit objections by Wednesday, October 19, 2022.

Background

OFCCP received a FOIA request from the Center for Investigative Reporting (CIR) seeking all Type-2 EEO-1 Report filed by federal contractors, including first-tier subcontractors, from 2016–2020 (all companies with 100 or more employees, whether conducting business with the federal government or not, must file an EEO-1 annually, but the FOIA request only asked for federal contractor reports.). The Type 2 EEO-1 provides a demographic breakdown of the employer’s work force by race and gender, aggregating data across all subsidiaries and locations. Because all companies contracting with the federal government directly or indirectly must file an EEO-1 if the company has 50 or more employees and has a contract, subcontract or purchase order amounting to $50,000 or more, OFCCP published a Federal Register notice allowing affected contractors to object.

Both the U.S. Equal Employment Opportunity Commission (EEOC) and the OFCCP oversee the EEO-1 report filings of federal contractors. While the Civil Rights Act of 1964 prohibits any EEOC officer or employee from disclosing this type of demographic information, courts have ruled that the same prohibition does not extend to the OFCCP and thus the EEO-1 reports that the OFCCP obtains are subject to FOIA. OFCCP believes that FOIA Exemption 4, 5 U.S.C. 552(b)(4), which protects against the disclosure of “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential,” may protect the Type 2 EEO-1. However, federal contractors must timely object to the release and assert that the information is privileged and confidential.

Next Steps for Companies

  1. Determine whether your company objects to the release of your EEO-1. Consider the following:
    1. Have you filed a Type 2 EEO-1?
    2. Can you articulate legitimate interests, including commercial or financial harm, that would be impacted by public disclosure of the information?
    3. Have you previously published this information voluntarily or do you keep the information confidential even within your company?
    4. Even with documented objections, the OFCCP determines whether Exemption 4 applies. But with no objection, the OFCCP assumes silence gives consent to the disclosure.
  2. If your company decides to object, include:
    1. A designated point of contact (first and last name, phone number and email address)
    2. Company information (name, address, and parent company’s EEO-1 unit number)
    3. A written statement answering the following questions:
      1. Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.
      2. Do you customarily keep the requested information private or closely held? If yes, please explain what steps have been taken to protect data contained in your reports and to whom it has been disclosed.
      3. Do you contend that the government provided an expressed or implied assurance of confidentiality? If yes, please explain. If no, skip to the next question.
      4. If you answered “no” to the previous question, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.
      5. Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.
  3. Submit the objection electronically by Wednesday, October 19, 2022:
    1. Through the Online OFCCP portal at https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal or
    2. Via email to OFFCCPSubmitterResponse@dol.gov

Brought to you by the Government Contract & Public Procurement and Employment groups.

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