Readers will recall that in August 2022, OFCCP published a notice in the Federal Register advising employers that it was the subject of a Freedom of Information Act (FOIA) request seeking EEO-1 data from all federal contractors, including first-tier subcontractors, for the period 2016-2020. At the time, OFCCP advised employers of their ability to object to this request under FOIA (by, among other things, filing an objection under FOIA Exemption 4, which protects confidential commercial information from being disclosed), and many employers filed objections to the disclosure of their EEO-1 reports. To date, OFCCP has reportedly not disclosed any EEO-1 forms.
On November 15, 2022, OFCCP was sued in the United States District Court for the Northern District of California by the organization that made the original FOIA request. The lawsuit seeks to compel OFCCP to produce these records, and argues that the agency should not entertain objections or withhold any EEO-1 forms under FOIA Exemption 4.
Starting in 2018, an activist group, the Center for Investigative Reporting (CIR), and Will Evans, an activist who describes himself as a reporter, have been fighting to force OFCCP to disclose EEO-1 reports that have been filed by federal contractors. These contractors have operated with the understanding that the government must keep such reports confidential.
In 2019, CIR obtained a ruling from a U.S. magistrate judge in a California federal district court that EEO-1 reports were not exempt from FOIA disclosure because they do not constitute commercial information for purposes of FOIA Exemption 4, which was the basis on which OFCCP had declined to produce the reports. At the time, OFCCP chose not to appeal the magistrate judge’s ruling. Although one of the employers whose data had been ordered disclosed tried to intervene and appeal, the Ninth Circuit held that the employer had failed to preserve its rights and denied the appeal.
The Current Lawsuit
CIR is now attempting to leverage its success before the California magistrate judge to compel OFCCP to produce years of EEO-1 reports for every federal contractor through a broad request that denies contractors their due process rights to object to the disclosures under FOIA, and will almost certainly result in the unlawful disclosure of data for some non-contractors.
Although many contractors chose to file objections to the proposed disclosure, none instituted a civil action to bar OFCCP from disclosing this data in violation of federal law. Now, CIR is asking the court for an injunction to require OFCCP to promptly release all of the EEO-1 data.
In the meantime, based on representations in the complaint filed by CIR, it appears that OFCCP will be providing to CIR a list of all employers that objected to disclosure of their EEO-1 data in response to this FOIA request. And on November 22, OFCCP began sending messages to at least some federal contractors stating that the agency has no record of an objection to disclosure of the EEO-1 data and is planning to release the data after January 2, 2023. It appears that contractors may still be able to file objections to the disclosure, although such objections may be subject to OFCCP’s determination as to whether the contractor had good cause for missing the original deadline. Of course, OFCCP’s entire process for handling this FOIA objection may also be subject to challenge in court.
Unless the contractor community now chooses to act, it seems possible that the EEO-1 Type 2 reports filed by federal contractors may no longer be protected from disclosure.
Littler’ Workplace Policy Institute (WPI) will keep readers apprised of developments. Employers that are interested in preventing the OFCCP from disclosing EEO-1 data may wish to discuss options with counsel.