On August 19, 2022, the Office of Federal Contract Compliance Programs (OFCCP) within the US Department of Labor published a notice in the Federal Register alerting federal contractors that the agency had received a Freedom of Information Act (FOIA) request seeking disclosure of EEO-1 reports from approximately 15,000 federal contractors.¹ Specifically, the FOIA request, submitted by the Center for Investigative Reporting, seeks all Type 2 Consolidated EEO-1 Report demographic data submitted by all federal contractors and first-tier subcontractors from 2016 through 2020. EEO-1 reports contain information on the number of employees working at each of an employer’s locations, along with information about the employees’ sex and race/ethnicity. Although the Equal Employment Opportunity Commission is prohibited from disclosing employers’ EEO-1 data, federal contractors’ data is exposed because the OFCCP is not subject to the same prohibition.

The OFCCP is still assessing whether the information requested may be protected from disclosure under FOIA Exemption 4, which protects privileged or confidential trade secrets and commercial or financial information. This exemption is available for government-held information that companies otherwise maintain confidentially and that is provided to the government with an express or implied assurance of confidentiality. The agency has invited contractors affected by the FOIA request to submit written objections to the disclosure of their data by September 19, 2022. The OFCCP encourages contractors to submit objections through the agency’s online form, but objections may also be submitted to the OFCCP via email or regular mail. If a contractor fails to submit a written objection by the deadline, the agency plans to assume the contractor has no objection and will begin the process of releasing contractors’ Type 2 EEO-1 Reports.

The written objection must include the contractor’s name and address, along with the name and contact information for the contractor’s point of contact. Additionally, the agency recommends that, at a minimum, the written objection address the following questions (contained in the online form linked above) in detail:

• 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, 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.

For contractors that submit timely objections, the OFCCP will independently evaluate the objection and determine whether the information can be withheld under FOIA Exemption 4. If the agency concludes that a contractor’s EEO-1 data can be withheld from disclosure, it will notify the contractor and refrain from disclosing it. Alternatively, if the agency determines the EEO-1 data must be disclosed, the OFCCP will provide the contractor with written notice of the reasons the disclosure objection was not sustained, a description of the information that will be disclosed and a specified disclosure date. Of note, the OFCCP likely will not sustain the objections of contractors that have voluntarily published their EEO-1 data in connection with their marketing or communications addressing employee diversity.

More information about this FOIA request and the objection process is available on the FAQ page of the OFCCP’s Submitter Notice Response Portal.