Update as of September 15, 2022: OFCCP has extended the deadline by one month for contractors to submit objections to the FOIA request described in this article. The new deadline is October 19, 2022. Additionally, in an effort to clarify which government contractors are covered by this FOIA request, OFCCP has indicated that it will be reaching out to “contractors that OFCCP believes are covered by this FOIA request” using the “email addresses provided as a contact for the EEO-1 report” through OFCCP’s Contractor Portal.
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In response to a broad Freedom of Information Act (“FOIA”) request the Office of Federal Contract Compliance Programs (“OFCCP”) may produce the Employment Information (“EEO-1”) Type 2 filings of up to 15,000 government contractors unless written objections are filed by September 19, 2022. This blog post explains the information that OFCCP has been asked to release and factors that government contractors should consider in deciding whether an objection to the release of this information is appropriate and advisable.
The FOIA request
On August 19, 2022, OFCCP announced in a federal register notice that it had received a FOIA request from an investigative reporter for all Type 2 reports filed by federal contractors between 2016 and 2020. Although government agencies generally deal with FOIA requests for contractor information directly with the contractor, due to the broad-reaching “voluminous” nature of the current requests, OFCCP maintains that seeking input via federal register notice is appropriate under the procedures set forth at 29 C.F.R. § 70.26(j) . The notice explains that although the Civil Rights Act of 1964 prohibits the Equal Employment Opportunity Commission (“EEOC”) from publishing EEO-1 report data, according to a 1974 D.C. Circuit decision, such prohibition does not apply to requests made to OFCCP for these same reports. See Sears, Roebuck & Co. v. General Services Admin., 509 F.2d 527, 529. As a result of OFCCP’s position, government contractors who have filed Type 2 reports now face the prospect of public disclosure of those reports, unless they file a timely objection under an applicable FOIA exemption and OFCCP agrees with their position. See 29 C.F.R. § 70.26(e) (a failure to file a timely objection “will be considered . . . no objection to the disclosure of the information”).
What information is the FOIA request seeking?
An EEO-1 report is an annual filing made to the EEOC that provides a demographic breakdown of an employer’s work force, including per-location data on race, ethnicity, gender, and employment position. Prime contractors and first-tier subcontractors that have 50 or more employees and a contract, subcontract or purchase order worth $50,000 or more are required to file EEO-1 reports. There are multiples types of EEO-1 reports, including consolidated reports that combine employee data across all company establishments (“Type 2” reports). It is these Type 2 reports containing consolidated employee demographic information—but not employee compensation information—that are sought under the current request. The Type 2 reports do not differentiate between commercial and government work, meaning these reports capture employee information unrelated to a company’s government contracting work.
How may a contractor object to the release of the requested information?
Contractors must file an objection to the release of their Type 2 reports by September 16, 2022. Although there are numerous exemptions to FOIA requests that could prevent disclosure of material, as noted by OFCCP, the most likely to be relevant is Exemption 4. This exemption protects the disclosure of confidential commercial information. Contractors objecting to the publication of their Type 2 reports on this basis must submit (either online or through email to OFCCPSubmitterResponse@dol.gov) an objection that includes responses 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)?
In addressing these questions, contractors should consider what factors may help establish that the information in their EEO-1 reports is confidential commercial information. For instance, if this information is typically protected by a contractor’s privacy policies and procedures, a contractor may cite to these protections as a basis for establishing the confidential nature of the information. By contrast, if information contained in the EEO-1 report is widely shared by a contractor (e.g., in recruiting materials, or on its website), then it is likely not protected under Exemption 4.
In addition to objecting to the release of information under Exemption 4, contractors should consider whether any other FOIA exemption might be applicable and consider objecting on that basis should cause exist. Contractors could also respond to the notice to seek confirmation that the failure to object to the current request will not justify the release of similar information in response to future requests without again providing contractors an opportunity to object. Finally, contractors with objections to the adequacy of the notice or process provided under the federal register notice could also file a response in the interest of having an adequate opportunity to object to the release of potentially exempt information requested in future FOIA requests.
Contractors should be aware that the substance of any filed objection “may itself be subject to disclosure under the FOIA.” 29 C.F.R. § 70.26(e). Although an objection to releasing EEO-1 reports aimed at protecting employment information may be viewed by some as a positive commitment to protecting employee privacy, others could view it as an effort to prevent disclosure of data that is otherwise required to be disclosed to the U.S. Government. As a result, we recommend contractors frame their objections with public consumption in mind.