August 22, 2022

OFCCP Provides 30-day Notice Seeking Individualized Objections from Federal Contractors Before Response to FOIA Request

On August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) alerted its federal contractor base that it received a request under the Freedom of Information Act (FOIA) from the Center for Investigative Reporting (CIR) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors and first tier subcontractors from 2016-2020.  By issuing this alert, the OFCCP has met its obligation to notify contractors that it will be disclosing information unless contractors file an objection within 30-days.

Background

Federal contractors and first-tier subcontractors that are covered by Executive Order 11246 and have 50 or more employees must annually file an EEO-1 Report.  The Type 2 EEO-1 report is one of several different types of reports that multi-establishment employers must file, which consists of a consolidated report of demographic data for all employees categorized by race/ethnicity, sex and job category. The EEO-1 Report is administered as a single data collection that is accessible to both the Equal Opportunity Employment Commission (EEOC) and the OFCCP.

This joint reporting status means that the public can make a direct FOIA request to the OFCCP for contractor EEO-1 data.

The OFCCP’s Response to the FOIA Request

While the OFCCP states that it plans to challenge the FOIA request under a confidentiality exemption, it is aware that its challenge may not be sustained based on a 2019 case from the Northern District of California where the court struck down the OFCCP’s assertion of confidentiality and required disclosure of 10 contractor EEO-1 reports.

Accordingly, the OFCCP is inviting federal contractors to file an objection to the disclosure of their 2016-2020 EEO-1 reports which the OFCCP may adopt in responding to the underlying FOIA request. Exemption 4, which protects from disclosure "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential,” is intended to protect the interests of both the government and submitters of information and will likely form the basis of any contractor objection in a reverse FOIA action. Federal contractors have thirty days to submit a written objection and must do so by September 19, 2022. The OFCCP will independently review the objection to determine whether it should withhold producing the contractors EEO-1 reports on the basis of one of the FOIA exemptions. The OFCCP will provide the objecting contractor notice if the OFCCP ultimately decides not to adopt the contractor’s objection and, instead, produce the contractor’s EEO-1 reports. In that instance, the contractor has the right to file a court action to enjoin the disclosure of its information. If a contractor does not file an objection by September 19, the OFCCP will understand the contractor does not object to the production of its EEO-1 data. According to the OFCCP’s FAQs, the “If OFCCP does not receive a written objection by the deadline, 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 (CIR).”

Filing an Objection

In order to submit a written objection, contractors are encouraged to use the OFCCP’s online portal available on the OFCCP’s website.

The OFCCP also encouraged 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 related to the contractor’s commercial or financial interests and whether the contractor considers the information confidential. The statute and associated case law make clear the scope of information that must be provided by submitters endeavoring to protect their information in a reverse FOIA action, such as here.

The OFCCP also included a list of questions to which the contractor should consider developing written responses, all of which are important to establish a basis for the applicability of FOIA Exemption 4. Those questions include:

  • 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.

Contractors also need to include the first and last name of their company’s point of contact, the point of contact’s phone number and email address, the company’s name and address, and the parent company’s EEO-1 unit number.

Contractors who wish to object to the disclosure of their EEO-1 reports should consider its grounds for claiming the data can be considered confidential and/or subject to trade secret protection. Exemptions to disclosure of documents under FOIA are interpreted strictly by agencies and courts. Therefore, supporting a company’s case for withholding a document from production as commercially sensitive will require marshalling the best arguments available that disclosure with both harm the company’s commercial or financial interests, and that the company treated the information confidentially internally, with suitable safeguards against disclosure.

This developing situation may be covered further in future alerts as more information is made available. If you have any questions, please contact a member of Faegre Drinker’s affirmative action and OFCCP compliance team.

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