According to OFCCP, on June 2, 2022, the Center for Investigative Reporting sent OFCCP a request for the disclosure of
. . .Type 2 EEO-1 reports for all federal contractors, including first-tier subcontractors, from 2016-2020….
The Center for Investigative Reporting, and other persons and organizations, have a history of requesting EEO-1 reports for various employers and/or industries. Importantly, this most current request is specifically for the EEO-1 Type 2 reports – the Consolidated EEO-1 report (as opposed to a headquarters (Type 3) or individual establishment report (Type 4) and is not a request for contractor’s Component 2 pay data.
Under the Freedom of Information Act (FOIA), on which the Center for Investigative Reporting is relying to request the information, requestees are entitled to object to the disclosure of the requested EEO-1 Reports. The published notice states:
OFCCP has reason to believe that the information requested may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial
information, but has not yet determined whether the requested information is protected from disclosure under that exemption. OFCCP is requesting that entities that filed Type 2
Consolidated EEO-1 Reports as federal contractors at any time from 2016-2020, and object to the disclosure of this information, submit those objections to OFCCP within 30 days of the date
of this Notice.
To facilitate noticing contractors of the request and to handle objections, OFCCP has publicly published a Notice of the Request, as well as launched a Response Portal via which federal contractors can submit objections. The website also includes helpful FAQs.
As OFCCP explains in its Notice of Request, “Exemption 4 to the FOIA protects against 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).” If a federal contractor objects to release of an EEO-1 Report, it is “required to submit a detailed written statement as to why the information is a trade secret or commercial or financial information that is privileged or confidential.” OFCCP will evaluate the contractor’s responses received to determine whether the requested information includes confidential trade secret, commercial, or financial information that should be withheld pursuant to FOIA Exemption 4. If a contractor does not object, OFCCP will not have a basis to withhold the information.
In order to facilitate their review, OFCCP advises that objections submitted via the Response Portal must include:
- The contractor’s name, address, contact information for the contractor (or its representative);
- Should, at minimum, address the following questions in detail 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 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 an interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor’s economic or business interests)?
Some federal contractors and subcontractors already share EEO-1 Report data with stakeholders and/or the public which may likely impact a decision to object, or to successfully argue that these data are confidential. For those federal contractors and first-tier subcontractors who do not already share EEO-1 data, the Center for Investigative Reporting and others continued pursuit of EEO-1 Report data may bring to a focal point what organizations want to, and can do, about sharing EEO-1 with the first consideration being whether the contractor wants to object and then the implications of objecting.
For those contractors who wish to object to disclosure it is imperative they submit the requested information by the September 19, 2022 deadline. If a contractor does not object, OFCCP will not have a basis to withhold the information. Thus, the decision should be based on careful consideration of individual contractor situations; a review of EEO-1 Report data; as well as on the advice of legal counsel
We will continue to monitor this situation and provide any notable updates.