On August 19, 2022, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a public notice to contractors about a Freedom of Information Act (FOIA) request from the Center for Investigative Reporting (CIR) for all EEO-1 Reports submitted between 2016–2020. Even though your company was not contacted directly, if your company filed an EEO-1 Report during that period, you must object to the disclosure by next Monday, September 19, 2022, or risk public release of sensitive information about your workforce. Below, PilieroMazza summarizes key points of the notice, including what information is at risk of being disclosed and how government contractors can protect their information.
What Information Is at Risk of Disclosure?
CIR’s FOIA request seeks EEO-1 Report data filed between 2016 and 2020. EEO-1 Reports, formally known as Type 2 Consolidated Employer Information Reports, are annual reports submitted to the EEOC detailing employee “demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category.” EEO-1 Reports are required for any employer with 100 or more employees. In addition, federal prime contractors and first-tier subcontractors must file EEO-1 Reports if they have (a) 50 or more employees and (b) a contract, subcontract, or purchase order for $50,000 or more. Indeed, the notice itself estimates that CIR’s request impacts 15,000 contractors.
Although the request is limited to EEO-1 Reports filed between 2016 and 2020, EEO-1 Reports filed outside this period may be affected by the notice. For example, a contractor who does not object to the release of its EEO-1 Reports from this period will likely face significant obstacles to objecting to the public release of EEO-1 Reports from other periods. Such an objection, as discussed below, would require the contractor to show that it “customarily” keeps this type of information private—a showing that will be difficult to make if it does not object to the release of EEO-1 Reports filed during the period at issue.
How Can Contractors Protect Their Information?
To begin, contractors must file a timely objection explaining why their EEO-1 data is exempt from disclosure. Although the government is required to release most information requested through FOIA requests, FOIA exempts certain categories of documents, including any “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. § 552(b)(4). To help OFCCP determine whether an EEO-1 Report falls under that exemption (known as Exemption 4), contractors’ objections will need to explain why the EEO-1 information is both commercial and confidential.
To establish that the information qualifies as commercial, the contractor will need to demonstrate that it has a commercial interest in the information. In most cases, companies have little difficulty making the required showing of commerciality. That said, in a prior lawsuit involving EEO-1 Reports requested by the same requester, the U.S. District Court for the Northern District of California concluded that EEO-1 Reports were not commercial because the included information was too general to put a contractor at any commercial risk.
To show that the information is confidential, the contractor must show that the information meets the Supreme Court’s relatively new definition. Since 2019’s Food Marketing Institute v. Argus Leader Media, confidential for Exemption 4 purposes means that the contractor actually and customarily kept the information private. This showing requires contractors to provide specific evidence of their policies and practices on confidentiality, including the fundamental point that the company has not previously disclosed this information publicly. To that end, the OFCCP’s notice specifically asks contractors to explain:
- Does the contractor customarily keep the requested information private or closely held?
- What steps were taken by the contractor to protect the confidentiality of the requested data, and to whom was it 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)?
Contractors can file objections by submitting them through a web portal or emailing the objections to OFCCPSubmitterResponse@dol.gov. We are also available to help draft and file objections to the release of this data, as we have already helped numerous clients assert their objections to disclosure.
If a contractor fails to object by September 19, OFCCP will assume there was no objection to the disclosure. Therefore, it is important that contractors check what information they have submitted in their EEO-1 Reports and if they want to keep that information from public disclosure.
