On August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published a Notice in the Federal Register regarding a Freedom of Information Act (“FOIA”) request from Will Evans, a Senior Reporter and Producer with the Center for Investigative Reporting (“CIR”).  The FOIA request seeks the disclosure of certain government contractor compliance reports submitted to the Equal Employment Opportunity Commission. The OFCCP is allowing affected contractors to submit objections to the FOIA request if they fear confidential commercial information may be disclosed and ultimately published. 

The Scope of the Request

The FOIA request was initially made in January 2019 but has been amended multiple times and now seeks all Type 2 Consolidated EEO-1 Report demographic data submitted by federal contractors and first-tier subcontractors from 2016-2020. The request does not include EEO-1 requests from single-establishment (Type 1) contractors, other EEO-1 reports filed by Type 2 (multi-establishment) contractors or Component 2 reports with compensation data. Type 2 Consolidated EEO-1 Reports are consolidated reports of demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category. OFCCP estimates that nearly 15,000 companies filed reports subject to the FOIA request. A company can use the EEO-1 Online Filing System’s historic data to determine if they filed EEO-1 Reports between 2016 and 2020.

What If I Don’t Want My EEO-1 Reports Made Public?

FOIA grants the public the right to request access to records from any federal agency. However, there are certain exemptions that allow agencies to redact – or entirely withhold – certain requested information. In its Notice, the OFCCP states it believes that the information requested may be protected from disclosure under FOIA Exemption 4 – which protects disclosure of confidential commercial information.

Accordingly, OFCCP is now requesting that any federal contractor who filed a Type 2 Consolidated EEO-1 Report as a federal contractor between 2016 and 2020 and who wishes to object to the disclosure of the information submit an objection to the OFCCP by September 19, 2022.

How Do I Submit an Objection?

Because of the large number of affected companies, OFCCP has established a portal for contractors to submit written objections. While the OFCCP encourages the use of the portal, objections may also be submitted via email to OFCCPSubmitterResponses@dol.gov, or by mailing to “ATTN: FOIA Officer (FRN), Office of Federal Contract Compliance Programs, Division of Management and Administrative Programs, 200 Constitution Avenue NW, Room C3325, Washington, DC 20210. All objections, however submitted, must be received by OFCCP by September 19, 2022.

What Must I Include in the Objection?

The OFCCP specifically requires the objection to include the contractor’s name, address, and contact information, and should, at a minimum address the following questions to determine if information should be withheld pursuant to FOIA Exemption 4:

• What specific information in the 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 information private or closely-held, what steps are taken to protected the confidentiality of the information, and to whom has it been disclosed?

• Does the contractor contend the government provided an express or implied assurance of confidentiality, or were there express or implied indication that the government would publicly disclose the information?

• How would disclosure of this information harm an interest of the contractor? Will it, for example, cause foreseeable harm to economic or business interests?

How Do I Know if My Information Is Covered Under FOIA Exemption 4?

The OFCCP Notice points contractors to two recent court decisions that should be considered in determining whether information may be withheld pursuant to Exemption 4.

In Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), the Supreme Court determine the term “confidential” in FOIA means what it did at the time of its enactment: “private” or “secret.” Following this, the Department of Justice issued a step-by-step guide for determining whether information is confidential under Exemption 4.

Further, in a case involving CIR, a district court determined that Type 2 Consolidated EEO-1 Reports were not protected from disclosure under Exemption 4 – finding that conclusory and verbatim rationale about the data contained in the reports did not support a finding that they were commercial. Center for Investigative Reporting v. U.S. Dep’t of Labor, 424 F. Supp. 3d 771 (N.D. Cal. 2019).  The OFCCP notes this is the only case discussing the commerciality of the EEO-1 Report data.

What Happens Next?

If you do not submit an objection to the FOIA request, then OFCCP will release the data to CIR as a part of a rolling production after September 19. If you do submit an objection, OFCCP will independently evaluate the objections and make a determination regarding withholding the information under Exemption 4. Both the objector and CIR will receive notice of a determination to withhold data.

The Bottom Line

If there is information contained in your EEO-1 Reports that you don’t want published or accessible to competitors, act fast to submit objections to OFCCP. Otherwise, you should expect that your report’s data may be provided to a reporter who will make it public.