Quick Hits

• New FOIA request noticed: A new FOIA request has been filed with OFCCP, seeking the release of federal contractors’ 2021 Type 2 Consolidated EEO-1 Reports in OFCCP’s possession.
• Deadline for objections: Contractors have forty days from the date of publication of OFCCP’s notice to object to the disclosure of their 2021 EEO-1 data.
• Separate from previous request: This is a new request for 2021 Consolidated EEO-1s; the most recent request in 2022 covered 2016–2020 Consolidated EEO-1 reports.

The EEO-1 Type 2 Report, also known as the Consolidated Report, is required for multi-establishment employers and aggregates demographic data (race/ethnicity, gender, and job category) from all of an employer’s locations into a single report. The Type 2 report includes general job categorization and demographic information; it does not include any compensation data provided on prior reports known under the similar name EEO-1 component 2.

Important Deadlines and Considerations

Contractors have forty days from publication of the notice in the Federal Register to file objections. The notice is anticipated to be published on October 29, 2024.

Contractors can search OFCCP’s list to determine whether their EEO-1 information is subject to the planned disclosure.

According to OFCCP’s notice, missing the deadline could result in the automatic release of sensitive EEO-1 data. As with the 2022 request, Contractors should also note that the objections must be submitted through the OFCCP’s Submitter Notice Response Portal or other specified means. OFCCP’s Notice states that the requesters of the 2021 EEO-1 Consolidated Reports also requested 2022 Consolidated Reports, but that data is not subject to the potential disclosure “because OFCCP currently only has the EEO-1 data for reporting year 2021 in its possession.”

Legal Background

The legal landscape surrounding FOIA requests and the disclosure of EEO-1 data has been contentious. With regard to the 2022 request for 2016–2020 EEO-1 Consolidated Reports, the U.S. District Court for the Northern District of California ruled that the contractors’ Type 2 Reports were not exempt from disclosure under FOIA Exemption 4—which protects disclosure of confidential commercial information—or the Trade Secrets Act. This ruling led to an appeal by the U.S. Department of Labor (DOL) to the Ninth Circuit Court of Appeals, which is still pending. Oral arguments for the proceeding are expected to occur in early 2025.

In contrast, this new request could follow a different legal trajectory, depending on the nature and volume of objections filed. Contractors may want to be aware of the legal precedents but also understand that each FOIA request can bring its own set of challenges and outcomes.

Grounds for Objection

OFCCP stated in the notice that contractors “should, at minimum, address the following questions in detail so that OFCCP may evaluate the objection to determine whether the information should be withheld or disclosed pursuant to FOIA Exemption 4.”

“1. What specific information from the 2021 EEO-1 Report does the contractor consider to be a trade secret or commercial or financial information?”

“2. What facts support the contractor’s belief that this information is commercial or financial in nature?”

“3. 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?”

“4. 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?”

“5. 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)?”