In 2019, the Office of Federal Contract Compliance Programs (OFCCP) received an unprecedented Freedom of Information Act (FOIA) request from an investigative reporter (which was later amended), requesting Type 2 Consolidated EEO-1 reports from 2016 through 2020 for federal contractors and first-tier subcontractors.  To provide background, the OFCCP requires contractors with 100 or more employees and federal contractors with 50 or more employees to submit an EEO-1 Report each year, which includes aggregate workforce information, including employee headcount and data on employee race/ethnicity, sex, and job categories.  FOIA is a statute that provides the public with the right to request records from federal agencies, including the OFCCP, with certain exceptions and exclusions.  In the request at issue, the individual requested the Type 2 Consolidated EEO-1 report, which is one of several types of reports that multi-establishment contractors must file annually; contractors with only one establishment are not covered by this request.

Because this FOIA request is so broad and seeks potentially confidential and proprietary information of numerous contractors, the OFCCP created a process to obtain covered contractor objections.  The agency created a portal for contractors to file objections to the disclosure of these records, and is permitting objections to be filed by mail and email, with a current submission deadline of October 19, 2022.  Additionally, the OFCCP stated that it will e-mail contractors that it believes are covered by the FOIA request.

In reviewing the objections, the OFCCP has stated that it will determine whether the information is exempt from disclosure under FOIA Exemption 4, which protects trade secret and commercial or financial information that is privileged or confidential from disclosure.  According to the OFCCP, the agency has not yet determined whether this exemption applies to the requested information, but it will review objections received and evaluate whether that information is protected from disclosure on an independent basis as it relates to each contractor that submits objections.  For contractors filing written objections, the OFCCP’s FAQs suggest the following questions be addressed in the objection:

• Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.

• 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?

• Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to the next question.

• 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.

• 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.

If the OFCCP overrules a contractor’s objections, the agency has stated that it will provide written notice to the contractor with an explanation as to why the objection was not sustained, a description of the information that was disclosed, and a specified disclosure date that is a reasonable time after the notice.  According to the OFCCP, if a contractor does not object in a timely manner, the agency will assume the contractor has no objection and will begin the process of disclosing the records.

Due to the fact that the information subject to this FOIA request may be disclosed and then shared broadly, contractors should thoroughly review their options with key stakeholders and competent legal counsel now, before the current October 19, 2022 deadline.

This week we are pleased to have a guest post by Robinson+Cole Labor and Employment Group lawyer Sapna Jain.