On Aug. 19, 2022, the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) issued a notice in the Federal Register, announcing its plans to comply with a Freedom of Information Act (FOIA) request that could have a significant impact on federal contractors.
The FOIA request asks for all Type 2 Consolidated Employer Information Reports, Standard Form 100, otherwise known as the EEO-1, filed by federal contractors from 2016–2020. Many federal contractors are required to file annual EEO-1 reports, which provide the government with demographic information about their employees.
Based on the information provided in the EEO-1 reports, the OFCCP believes they likely contain information that is exempt from release under FOIA Exemption 4, which specifically protects against the disclosure of confidential commercial information. FOIA Exemption 4 protects against the disclosure of confidential commercial information.
As a result, federal contractors that filed EEO-1 reports between 2016–2020 need to take action. At a minimum, federal contractors need to quickly confirm whether or not they filed EEO-1 reports, what information is contained therein, and whether they consider that information to be confidential. Federal contractors who filed EEO-1 reports during that timeframe, and who believe those reports contain confidential information, may object to the OFCCP releasing their EEO-1 reports. But they must do so quickly.
Objections to the release of the EEO-1 reports are due to the OFCCP no later than Sept. 19, 2022. Contractors who submit objections must provide their company name, address, and point of contact, and must also provide a response to the following questions:
- 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 not, 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)?
Failure to object promptly – by Sept. 19 – will be considered a “no objection,” allowing OFCCP to release the EEO-1 reports without redaction.