On Aug. 19, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a Notice in the Federal Register to advise employers that it had received a Freedom of Information Act (FOIA) request for employer information that it has reason to believe “may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information.” 

The FOIA request, first made by the Center for Investigative Reporting (CIR) in 2019 and later amended, seeks from OFCCP all Type 2 Consolidated EEO-1 Reports submitted by federal contractors and first-tier subcontractors from 2016-2020 (collectively, “Contractors”). The Type 2 Consolidated EEO-1 Report is one of four reports that multi-establishment companies with 100 or more employees, or with 50 or more employees if the employer is a federal contractor, may be required to file annually. The Reports include data for company employees categorized by race/ethnicity, sex and job category. The other EEO-1 reports, which also must include data categorized by race/ethnicity, sex and job category, are: the Type 3 Headquarters Report reflecting data for employees working at the company’s main office; the Type 4 Establishment Report, which must be submitted for each establishment with 50 or more employees; and the Type 8 Establishment report, which replaced the Type 6 Establishment Report earlier this year, and which must be submitted for each establishment with fewer than 50 employees. As described in a series of FAQs published by OFCCP, EEO-1 reports filed by single-establishment contractors (Type 1) and other EEO-1 reports (Types 3, 4, 6 and 8) are not covered by the request. EEO-1 reports containing compensation information, such as Component 2 EEO-1 reports that were collected by the EEOC, are also not covered by the request.

OFCCP has established a web form through which Contractors can submit objections. Although OFCCP “strongly encourages” Contractors to use this web form, Contractors may submit written objections via email at [email protected], or by mail to: Candice Spalding, Deputy Director, Division of Management and Administrative Programs, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW, Room C-3325, Washington, DC 20210.  Regardless of how objections are submitted, they must be received by OFCCP by Sept. 19, 2022.

As per FAQ 10, Contractors that choose to submit an objection should include as much information as possible and, at a minimum, provide answers to the following questions:

• 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, skip to the next question.
• If you answered “no” to the previous question, 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.

OFCCP will evaluate timely objections submitted and determine whether the information can be properly withheld under FOIA Exemption 4. OFCCP will then notify the Contractor of its decision to withhold or disclose the data. If OFCCP’s decision is to disclose, the written notice will include the reasons the disclosure objections were not sustained, a description of the information that will be disclosed, and a specified disclosure that is a “reasonable” time after the Contractor receives notice of OFCCP’s decision, presumably to allow the Contractor time to seek judicial relief.

Objections to disclosure must be received by OFCCP by Sept. 19, 2022. Grounds for objection are narrow, and there is no guarantee that OFCCP will grant a request to withhold data. Should you have any questions or need assistance, please contact your regular AT lawyer or the author listed below.