On October 29, 2024, the U.S. Department of Labor's (DOL) Office of Federal Contract Compliance Programs (OFCCP) published a notice in the Federal Register (the "Notice") regarding a request the DOL received under the Freedom of Information Act (FOIA) for 2021 Type 2 Consolidated Employment Information Reports ("EEO-1 Reports"). EEO-1 Reports are compliance surveys that track the composition of the workforce including data on race, ethnicity, gender, and job categories for submission to and review by the Equal Employment Opportunity Commission. All private employers with at least 100 employees, as well as federal government contractors, and first-tier subcontractors with at least 50 employees and $50,000 in contracts, are required to file EEO-1 Reports. Importantly, EEO-1 data of federal contractors received by OFCCP is subject to the provisions of FOIA.
The FOIA requests received by the DOL came from the University of Utah and "As You Sow," a non-profit organization engaged in promoting environmental and social corporate responsibility. While the specific purpose of the FOIA requests is not known at this time, it is anticipated that the information received will be separately used by the University of Utah and "As You Sow" for some mixture of academic research and advocacy. The list of the over 14,000 companies whose data is part of the request can be found here – 2021-List-of-Entities.xlsx (live.com).
If your company is on that list (and it does contain Oklahoma employers), the Notice provides that subject contractors have until December 9, 2024, to submit written objections. See Submitter's Response Form | OFCCP Apps (dol.gov).
A written objection to the FOIA request would likely be based on FOIA's Exemption No. 4 which protects against the disclosure of "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential." 5 U.S.C. 552(b)(4). Accordingly, to the extent your company is on the OFCCP List, and as a contractor you have reason to believe your EEO-1 Reports may contain trade secret or other proprietary information, you should strongly consider submitting a written objection to OFCCP.
Written objections must contain the contractor's name, address, contact information, and should address the following questions in detail so that OFCCP can evaluate the legitimacy of the objection:
- 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)?
The failure to timely submit an objection may result in an automatic disclosure of the information. Only timely submissions will be reviewed by OFCCP. Should OFCCP determine that disclosure of the information is warranted, it will provide written notice of the disclosure to the subject contractor.
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.
