You may recall that, beginning in 2019, the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) began receiving requests under the Freedom of Information Act (FOIA) for all EEO-1 reports submitted by all federal contractors from 2016 through 2020. Those requests covered roughly 75,000 reports from 24,355 federal contractors. By August 2022, OFCCP published a notice in the Federal Register informing all contractors of the FOIA request and provided them with an opportunity to object to the request. By April 2022, OFCCP had released all EEO-1 reports of all non-objecting contractors. The OFCCP has not released reports from contractors that objected to the disclosure, which are now mired in litigation.
Well, it is happening again. This time, on October 29, 2024, the OFCCP published a notice in the Federal Register that it received two FOIA requests for certain 2021 EEO-1 Reports filed by federal contractors and first-tier subcontractors. The requests were filed by the University of Utah and a non-profit called "As You Sow." Specifically, the broader request seeks all Type 2 Consolidated EEO-1 Report demographic data (i.e., "Component 1" EEO-1 Reports) submitted by federal contractors and first-tier subcontractors for the reporting year 2021.
The Type 2 Consolidated EEO-1 Report is one of several different types of reports that are filed by entities with multiple establishments, or more than one location. EEO-1 reports containing compensation information (i.e., "Component 2" EEO-1 reports), which were collected by the EEOC, are also not covered by the request. Furthermore, Type 2 data only applies to multijurisdictional establishments and not to contractors with only one establishment. Contractors that only have one establishment are not subject to this request. Any Type 2 EEO-1 Report filed for 2021 indicating that a company was a federal contractor is included in the request.
The deadline to submit written objections is December 10, 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.
If you are a federal contractor, you should consider whether to object to the request. If you choose to do so, you should provide as much information as possible addressing why your Type 2 EEO-1 Report data should not be released under FOIA, including whether the information is commercial/financial and confidential. At a minimum, OFCCP suggests that written objections address the following questions:
- Do you consider information from your EEO-1 Report to be a trade secret or commercial information?
- Do you customarily keep the requested information private or closely held?
- What steps have been taken to protect data contained in your reports, and to whom it has been disclosed?
- Did the government provide an express or implied assurance of confidentiality?
- Were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information?
- Do you believe that disclosure of this information could cause harm to the company's economic or business interests?
Contractors subject to the FOIA requests can be found on the OFCCP's website here: https://www.dol.gov/agencies/ofccp/foia/library/Employment-Information-Reports.
To facilitate contractors' written objections and the agency's assessment of them, OFCCP has created the Submitter Notice Response Portal to collect relevant information from contractors and their representatives that wish to object to the release of the requested data. The Portal can be found here: https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal.
Remember, the deadline to submit an objection is December 10, 2024. If you need any assistance in evaluating whether to object to this FOIA request, please contact your Foley & Lardner attorney.
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.
