On September 15, 2022, OFCCP announced that it is extending the September 19, 2022 deadline for contractors to object to Type 2 EEO-1 Reports in response to the Freedom of Information Act (FOIA) request by the Center for Investigative Reporting (CIR). OFCCP extended the deadline to October 19, 2022 to allow contractors more time “to verify whether they are included in the universe” of 2016 to 2020 Type 2 EEO-1 Reports requested by CIR. OFCCP also said that it will contact contractors it believes are covered by the FOIA request, using contractors’ email addresses from the OFCCP Contractor Portal and EEO-1 Reports.
Background
In 2019, Will Evans, an investigative reporter at CIR, sent OFCCP a FOIA request for EEO-1 Reports of federal contractors and first-tier subcontractors. The FOIA request was later amended in June 2022 to request disclosure of Type 2 EEO-1 Reports for reporting years 2016 through 2020 indicating that the submitter was a federal contractor. The EEO-1 Reports in question are one of several types of reports filed by multijurisdictional establishment employers and include aggregated demographic data for company employees by race/ethnicity, sex, and EEO-1 job category for the company headquarters and other company establishments. EEO-1 Reports filed by single-establishment contractors (Type 1) and other EEO-1 Reports filed by multi-establishment contractors (Types 3, 4, 6, and 8) are not covered by CIR’s FOIA request. EEO-1 Reports containing compensation information (i.e., “Component 2” EEO-1 reports) are also not covered by the request. Type 2 EEO-1 Reports also only apply to multijurisdictional establishments and not to contractors with only one establishment.
OFCCP’s Notice and Online Portal
On August 19, 2022, OFCCP published a Notice in the Federal Register (the “Notice”), informing contractors of CIR’s renewed FOIA request for EEO-1 Reports and providing detailed instructions on how to object. OFCCP stated that it “believes the information requested may be protected from disclosure under FOIA Exemption 4,” but it will not make final determinations until it evaluates written objections submitted by contractors. OFCCP will release EEO-1 Reports sought by CIR’s FOIA request for any contractors who do not submit timely written objections.
OFCCP plans to assess timely submitted objections to determine whether the contractor’s EEO-1 Reports “should be withheld pursuant to FOIA Exemption 4.” OFCCP advised 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, including whether the information is commercial/financial and confidential.” OFCCP states that written objections “at a minimum” should address the following questions:
- Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.
- Do you customarily keep the requested information private or closely held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed.
- Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to the next question.
- If you answered “no” to the previous question, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.
- Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.
In preparation for the anticipated large influx of objections, OFCCP created a Submitter Notice Response Portal for contractors to submit their objections and provided FAQs. Contractors can opt to file objections via mail or email on or before the October 19 deadline. OFCCP also provided the following option for contractors to ask OFCCP FOIA Help Desk questions related to the Notice or FOIA request by email to OFCCP at OFCCP-FOIA-EEO1-Questions@dol.gov.
Next Steps
Contractors who have not already filed objections now have more time to consider whether to object to CIR’s request. There are various issues for contractors to consider concerning whether to object and how best to position their written objections if they decide to object. Contractors should work with experienced legal counsel to consider the right path for their company and how to position their written objections if they opt to object.
Contractors who are unsure about whether they are covered by the FOIA request should review their internal EEO-1 filing records to confirm whether they filed EEO-1 Reports during the relevant time period—2016 through 2020. Past EEO-1 Reports are also available in the EEO-1 Online Filing System.