By Bill Osterndorf, Evan Szarenski
On August 19, 2022, the Office of Federal Contract Compliance Programs (OFCCP) published a notice in the Federal Register that allows federal contractors and subcontractors to object to the release of their EEO-1 reports. OFCCP had received a request under the Freedom of Information Act (FOIA) to provide EEO-1 Type 2 reports.
Type 2 reports are filed by organizations that have more than one establishment and these reports act as a consolidated report for all of an organization’s establishments.
OFCCP issued a statement on August 18 discussing the formal notice that appears in the Federal Register. The statement noted that the FOIA request had been received in 2019 and was amended most recently in June of 2022. The FOIA request asks for all Type 2 reports available to OFCCP for the years 2016 through 2020. OFCCP’s notice provides federal contractors and subcontractors the opportunity to file a formal objection, which OFCCP must then consider before releasing the requested information. Federal contractors and subcontractors that fail to file an objection will have their Type 2 reports released to the organization that made the FOIA request.
Federal contractors and subcontractors must file an objection by September 19, 2022. OFCCP’s notice suggests that may be protected by FOIA exemption 4, which protects trade secrets and commercial or financial information that may be privileged or confidential. Any objection sent to OFCCP must respond to the following questions:
- What specific information from the EEO-1 Report does the contractor consider to be a trade secret or commercial or financial information?
- What facts support the contractor’s belief that this information is commercial or financial in nature?
- Does the contractor customarily keep the requested information private or closely-held? What steps have been taken by the contractor to protect the confidentiality of the requested data, and to whom has it been disclosed?
- Does the contractor contend that the government provided an express or implied assurance of confidentiality? If no, were there express or implied indications at the time the information was submitted that the government would publicly disclose the information?
- How would disclosure of this information harm an interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor’s economic or business interests)?
Two court cases from 2019 are cited in OFCCP’s notices. One of those cases, Center for Investigative Reporting v. U.S. Dep’t of Labor, directly relates to the current FOIA request. The federal district court in this case ruled that EEO-1 Type 2 reports were not protected under FOIA exemption 4. As OFCCP states in its notice, an appeal of this decision was ultimately rejected on procedural grounds.
Federal contractors and subcontractors should be cautious about allowing the public release of EEO-1 Type 2 data. The FOIA request does not ask for the kind of sensitive compensation data that was collected from employers for 2017 and 2018. However, Type 2 reports include significant demographic data regarding race and sex on an organization’s total workforce, including subsidiaries and related companies. An analysis of multiple years of EEO-1 data may show workforce trends and demographic issues that may be of concern to employers and their various stakeholders.
Organizations that are affected by the FOIA request will need to quickly determine whether they intend to object to the release of their EEO-1 Type 2 reports.
DCI clients are invited to join our expert consultants for a special live webinar next week as they discuss this OFCCP notice regarding the EEO-1 FOIA requests. Click here to register now.