Key Point

• Federal contractors and subcontractors who filed Type 2 EEO-1 Reports for the years 2016-2020 are advised that the Office of Federal Contract Compliance Programs (OFCCP) intends to release the data from such filed EEO-1 Reports unless they file written objections asserting Freedom of Information Act (FOIA) objections by no later than September 19, 2022.

What information is subject to the FOIA request?

The Center for Investigative Reporting (CIR) filed FOIA requests with the OFCCP requesting a spreadsheet of all consolidated Type 2 EEO-1 reports for all federal contractors, including first-tier subcontractors for 2016-2020. Type 2 reports are consolidated reports filed by multi-establishment employers containing demographic data for all employees employed at the employers’ headquarters and establishments. The OFCCP subsequently filed a notice in the Federal Register alerting all federal contractors and first-tier subcontractors of the pending FOIA requests, the impending disclosure of potentially confidential information, and the opportunity for contractors to submit written FOIA objections to prevent disclosure of the confidential information.

According to generally established FOIA law, persons and companies that submit confidential, commercial information to the Government are entitled to notice and an opportunity to object to disclosing such information that may be responsive to a FOIA request. Due to the large volume of submissions covered by the request, the OFCCP provided the required FOIA notice to contractors by publication in the Federal Register. OFCCP also set up an online portal for contractors to file their FOIA objections to the disclosure of their Type 2 EEO-1 data.

Which EEO-1 filers should submit objections?

The FOIA requests seek information pertaining only to federal contractors and first-tier subcontractors that are multi-establishment companies, which the OFCCP estimates to be approximately “15,000 unique covered contractors.” However, there remains uncertainty as to which federal contractors and sub-contractors the OFCCP will determine are subject to the FOIA request. OFCCP likely has insufficient information to determine whether sub-contractors that submitted data are first-tier sub-contractors.  Additionally, contrary to its customary practice, the OFCCP has declined to notify individual federal contractors and first-tier subcontractors that they are subject to the request unless the federal contractor or their representatives have registered and provided electronic mail contact information through the OFCCP Contractor Portal or have subscribed to the OFCCP’s GovDelivery electronic mail listserv. Consequently, all federal contractors and sub-contractors that have filed a Type 2 EEO-1 report with the OFCCP for the years 2016-2020 should consider submitting timely objections to the OFCCP to protect the confidentiality of their data.

How are objections filed with the OFCCP?

Each covered contractor that seeks to prevent disclosure of their EEO-1 report must file objections with the OFCCP, and using the online portal the OFCCP has established (OFCCP Submitter Notice Response Portal) or via email (OFCCPSubmitterResponse@dol.gov), by no later than September 19, 2022. The OFCCP notice indicates that the information contained in the Type 2 EEO-1 reports may be exempt from disclosure under FOIA Exemption 4 which precludes disclosure of confidential commercial information. Contractors and subcontractors filing objections under Exemption 4 must provide, at a minimum, the following information:

1. The name, address and contact information for the contractor or its representative;
2. The specific information contained in the EEO-1 report is considered to be a trade secret or commercial or financial information;
3. The facts supporting the contractor’s belief that the information is commercial or financial in nature;
4. Whether the information is customarily kept confidential or closely held by the contractor, the steps taken to maintain the confidentiality of the data, and to whom the data has been previously disclosed;
5. Whether the contractor contends that the government provided an express or implied assurance to maintain the confidentiality of the requested data, and if not, whether the government provided express or implied indications that it would publicly disclose the data; and
6. Whether disclosure would harm the interest of the contractor that is protected under Exemption 4.

Although the OFCCP only has indicated that the data may be exempt from disclosure under FOIA Exemption 4, the Type 2 EEO-1 data also may be exempt under other FOIA Exemptions.

The OFCCP will interpret the failure to file objections as a contractor’s consent to the disclosure of the information. Additionally, the OFCCP will independently evaluate all objections submitted.  If the OFCCP denies the objections, contractors will receive notice of the reason for the denial, a description of the information to be disclosed, and the subsequent date of disclosure.

What you need to know

Contractors who have submitted Type 2 EEO-1 reports should review their data submitted to the OFCCP for the years 2016-2020 and, to the extent they do not want that information to be provided by the Government in response to a third-party FOIA request, take appropriate steps to protect their data from disclosure by filing timely objections with the OFCCP by the September 19, 2022 deadline.

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