Real World Impact: Federal contractors have until December 9, 2024 to file written objections to disclosure of their EEO-1 reports by the OFCCP in response to a recent FOIA request.
Background: On October 28, 2024, OFCCP published a Notice in the Federal Register alerting federal contractors that it received two new Freedom of Information Act (FOIA) requests seeking approximately 14,000 federal prime contractors' and first-tier subcontractors' EEO-1 Type 2 Consolidated Reports for the year 2021. The requests also ask for the 2022 EEO-1 Type 2 Consolidated Reports, but OFCCP currently has access only to the 2021 reports. Contractors who wish to object must do so on or before December 9, 2024. If OFCCP does not receive a written objection, the agency will assume that the Company has no objection to disclosure and will begin the process of sending the contractor's Type 2 EEO-1 Report data to the FOIA requester.
Below are the answers to some commonly asked questions concerning the OFCCP's notice.
Who submitted the FOIA requests?
The FOIA requests were submitted by the University of Utah and the non-profit organization "As You Sow."
Is my Company covered by the FOIA requests?
OFCCP released a list of contractors subject to the FOIA requests, which is available on the OFCCP's website. Because one of the FOIA requests OFCCP received asked for the Type 2 Consolidated EEO-1 Report data of all federal contractors that filed Type 2 Reports for the years 2021 and 2022, there are approximately 14,000 contractors on the list.
What is an EEO-1 Type 2 Consolidated Report?
Multi-establishment employers must file annually a single "Consolidated Report" (known as a Type 2 Report) covering all employees. This report is automatically generated by the EEO-1 filing portal by consolidating the employer's headquarters and establishment data, categorized by job category, sex, race and ethnicity. Unlike the EEO-1 Component 2 data (which EEOC has not collected since 2018), the EEO-1 Type 2 Consolidated Report does not include compensation data.
How does my Company object?
OFCCP has established a portal for filing objections – which is the preferred method – however, if utilizing the portal is not feasible, objections may also be emailed to OFCCPSubmitterResponse@dol.gov.
Written objections, at a minimum, should address the following questions:
1. What specific information from the 2021 EEO-1 Report does the contractor consider to be a trade secret or commercial or financial information?
2. What facts support the contractor's belief that this information is commercial or financial in nature?
3. 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?
4. 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?
5. 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)?
Are these the same as the FOIA request from a few years ago?
The two new FOIA requests are separate from the previous 2022 FOIA request by the Center for Investigative Reporting (CIR) that sought EEO-1 Type 2 Reports for the 2016-2021 reporting years. The 2022 CIR FOIA requests are currently part of active, pending litigation. Information related to the 2022 FOIA request can be found here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
