OFCCP Provides Notice of FOIA Request for 2021-22 EEO-1 Data: Individualized Objections From Federal Contractors Due Before Dec. 10, 2024

At a Glance

• The OFCCP issued a Notice to its federal contractor base regarding a FOIA request for the disclosure of all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors and first tier subcontractors from 2021-22.
• As with prior requests, the OFCCP is inviting contractors to file an objection to the disclosure of their EEO-1 Report data.
• Contractors who wish to object to the disclosure of their EEO-1 Report data should consider its grounds for claiming the data can be considered confidential and/or subject to trade secret protection and file their objection within 40 days.

On October 29, 2024, the Office of Federal Contract Compliance (OFCCP) alerted its federal contractor base of two new requests under the Freedom of Information Act (FOIA) from the Center for Investigative Reporting (CIR) for the disclosure of all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors and first tier subcontractors from 2021-22. By issuing this alert, the OFCCP has met its obligation to notify contractors that it will be disclosing information unless contractors file an objection within 40 days.

Background

Federal contractors and first-tier subcontractors (contractors) that are covered by Executive Order 11246 and have 50 or more employees must annually file an EEO-1 Report.  The Type 2 EEO-1 report is one of several different types of reports that multi-establishment employers must file, which consists of a consolidated report of demographic data for all employees categorized by race/ethnicity, sex and job category.

The EEO-1 Report is administered as a single data collection that is accessible to both the Equal Opportunity Employment Commission (EEOC) and the OFCCP. This joint reporting status means that the public can make a direct FOIA request to the OFCCP for contractor EEO-1 data.

The October 29 Notice informed contractors that the OFCCP received two FOIA requests which collectively sought Type 2 EEO-1 Report data for 2021 and 2022. However, because the OFCCP currently only has the EEO-1 data for reporting year 2021 in its possession, the Notice is currently limited to that dataset.

OFCCP’s Response to the FOIA Request

Though similar in nature, this recent October 29 Notice is separate from the OFCCP’s previous August 2022 Notice issued in response to prior FOIA requests, which informed contractors of requests seeking their 2016-20 EEO-1 Report data. Those 2022 FOIA requests led to litigation that is still actively working its way through the court system and are currently on appeal before the Ninth Circuit. Thus, the acceptance of contractors’ prior objections, in addition to any newly filed objections, remain to be seen.

Contractors should be aware that any objection to the previous 2022 FOIA requests will not be responsive to the current requests. Contractors will need to take the necessary steps now to consider their position and either file an objection or refrain from responding by the December 2024 deadline.

As with the prior requests, the OFCCP is inviting contractors to file an objection to the disclosure of their 2021 EEO-1 reports. Contractors have 40 days from October 29 to submit a written objection and must do so before December 10, 2024. The OFCCP will independently review the objection to determine whether it should withhold producing the contractors EEO-1 reports on confidentiality grounds. The OFCCP will provide the objecting contractor notice if the OFCCP ultimately decides not to adopt the contractor’s objection and, instead, produce the contractor’s EEO-1 reports. If a contractor does not file an objection by deadline, the OFCCP will understand the contractor does not object to the production of its EEO-1 data.

Filing an Objection

In order to submit a written objection, contractors are instructed to use the same OFCCP Submitter Notice Response Portal created for the last round of objections, which is available on the OFCCP’s website.

The OFCCP also encouraged contractors to provide as much information as possible addressing why they believe their Type 2 EEO-1 Report data should not be released under FOIA, and objectors are “required to submit a detailed written statement as to why the information is a trade secret or commercial or financial information that is privileged or confidential.”

Contractors who are not able to utilize the notice response portal may also submit written objections via email to OFCCPSubmitterResponse@dol.gov or by mail.

The OFCCP also noted that contractors must provide the contractor’s name, address and contact information for the contractor (or its representative), and should, at minimum, address the following questions for the Agency’s consideration:

• What specific information from the 2021 EEO-1 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 requested information private or closely held? What steps have been taken by the contractor to protect the confidentiality of the requested data, and to whom has it been disclosed?
• Does the contractor contend that the government provided an express or implied assurance of confidentiality? If no, were there express or implied indications at the time the information was submitted that the government would publicly disclose the information?
• How would disclosure of this information harm an interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor's economic or business interests)?

Contractors who wish to object to the disclosure of their EEO-1 Report data should consider its grounds for claiming the data can be considered confidential and/or subject to trade secret protection.

Finally, contractors unsure of whether the request implicates their EEO-1 Report data can search the “Contractors List” linked on the notice response portal.

This developing situation may be covered further in future alerts as more information is made available.