Looming Deadline to Object to Release of EEO-1 Report Data for Federal Contractors
On October 29, 2024, the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) notified federal contractors of Freedom of Information Act (FOIA) requests seeking the disclosure of their EEO-1 Type 2 Reports for the year 2021.[1] The notice provided affected federal contractors an opportunity to submit written objections to having their reports disclosed. The deadline for submitting written objections is December 10, 2024. If OFCCP does not receive a written objection by the deadline, the agency will assume that the contractor has no objection to disclosure and will begin the process of releasing the contractor’s Type 2 EEO-1 Report data.
Contractors Whose Reports are at Risk of Disclosure
Federal contractors and first-tier subcontractors who filed EEO-1 Type 2 reports for reporting year 2021 are subject to having their reports disclosed. Type 2 reports are filed only by entities with multiple establishments or locations. Contractors with only one establishment do not file Type 2 reports.
A list of contractors whose reports are at risk of disclosure is available on OFCCP’s website.
What Information Appears on the EEO-1 Type 2 Report
The EEO-1 Type 2 report consolidates data from all the contractor’s multiple establishments and provides a demographic breakdown of the consolidated workforce by job category reporting sex and race or ethnicity in each of ten job categories.
Deciding Whether to Object to Disclosure of the EEO-1 Type 2 Report
Contractors may object to the disclosure of their EEO-1 Type 2 reports using FOIA Exemption 4, which protects 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).
Although OFCCP has reason to believe the information requested may be protected from disclosure, it has not made a final determination. Accordingly, contractors who are interested in objecting to these requests have been encouraged to provide the following information so that OFCCP may evaluate the objection to determine whether the information should be withheld or disclosed pursuant to FOIA Exemption 4:
- 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 the interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor's economic or business interests)?
How to Submit the Objection
To facilitate contractors’ written objections and OFCCP’s assessment of them, OFCCP has created the Submitter Notice Response Portal, to collect relevant information from contractors who wish to object to the release of the requested data. OFCCP strongly suggests contractors use the Portal to submit their responses. The Portal can be accessed here: Submitter’s Response Form | OFCCP Apps
Notice of Determination
Once submitted, OFCCP will independently evaluate the objection submitted and make a determination as to whether the information can be properly withheld under FOIA Exemption 4 based on the information provided in the written objection. Once a determination is made, OFCCP will notify the contractor whether the Type 2 Report will be disclosed. If OFCCP determines that the Type 2 Report will be disclosed, 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 date that is a reasonable time after the contractor receives notice of OFCCP’s determination.
For Questions or Assistance
If you have any questions regarding the scope of the pending request or need assistance in preparing or submitting your objections, please do not hesitate to contact a member of Smith Anderson’s Workplace Law group.
[1] In 2022, OFCCP received a request under FOIA seeking the disclosure of EEO-1 Reports filed by federal contractors between 2016-2020. Accordingly, OFCCP provided a similar notice regarding the covered contractors right to object to the disclosure of their EEO-1 data. The 2022 FOIA request is currently subject to ongoing litigation. To date, OFCCP has contested the disclosure of the EEO-1 Reports for covered contractors who timely filed objections to the release of this information. By contrast, OFCCP published the requested data for covered contractors that either affirmatively agreed to, or did not object to, the release of their EEO-1 data. As a result, the EEO-1 information for almost 20,000 federal contractors is currently available on OFCCP’s website.
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