Deadline Approaching for Federal Contractors to Object to Disclosure of EEO-1 Reports

Federal contractors have until December 10, 2024, at 11:59 p.m. to file written objections to the disclosure of their EEO-1 Type 2 Consolidated Reports in response to a recent Freedom of Information Act (FOIA) request. This deadline stems from a recent announcement by the Office of Federal Contract Compliance Programs (OFCCP) alerting contractors to two new FOIA requests seeking sensitive workforce data from approximately 14,000 contractors for the years 2021 and 2022.

Background: FOIA Requests and EEO-1 Reports

The FOIA requests, submitted by the University of Utah and the non-profit organization “As You Sow”, seek the EEO-1 Type 2 Consolidated Reports of federal prime contractors and first-tier subcontractors for the 2021 reporting year. While the requesters also sought the 2022 reports, OFCCP currently only has access to 2021 data.

The EEO-1 Type 2 Consolidated Report includes detailed demographic data on employees categorized by job category, sex, race, and ethnicity. However, unlike the EEO-1 Component 2 data, which was last collected by the Equal Employment Opportunity Commission (EEOC) in 2018, it does not include compensation information.

Contractors who wish to block the release of their EEO-1 data under these requests must file an objection by the December deadline. If the contractor files no objection, OFCCP will assume consent to disclose the reports and release the information to the requesters.

Who is affected?

The FOIA requests target federal contractors who filed EEO-1 Type 2 reports in 2021 and 2022. These requests could impact around 14,000 contractors. A complete list of contractors whose data is included in the FOIA requests is available on the OFCCP’s website.

How to Object:

Contractors who believe that disclosing their EEO-1 Type 2 Consolidated Reports would violate their privacy or business interests can file a written objection to prevent the release. OFCCP has set up an online portal to submit objections. However, objections can also be emailed to OFCCPSubmitterResponse@dol.gov or sent via mail to the contact information provided in the Federal Register notice[1]. The OFCCP strongly encourages contractors to use its online portal to submit objections, but alternative methods (email or mail) are also acceptable.

Regardless of the delivery system used, any objections filed must include the contractor’s name, address, and contact information for the contractor (or their representative).

Written objections must be submitted by December 10, 2024, and should address the following questions in detail:

1. Identification of Sensitive Information: What specific information from the 2021 EEO-1 Report does the contractor consider a trade secret or commercial or financial information?
2. Nature of the Information: What facts support the contractor’s belief that this information is commercial or financial?
3. Confidentiality Practices: Does the contractor customarily keep the requested information private or closely held? What steps has the contractor taken to protect the confidentiality of the requested data, and to whom has it been disclosed?
4. Government Assurance of Confidentiality: Does the contractor contend that the government provided an express or implied assurance of confidentiality? If no, were there express or implied indications when the information was submitted that the government would publicly disclose the information?
5. Potential Harm: How would disclosure of this information harm the interest of the contractor protected by Exemption 4 to the FOIA (such as by causing foreseeable harm to the contractor’s economic or business interests)?

What happens after I submit my objection?

For those who submit timely objections, OFCCP will carefully evaluate the submitted statements before deciding whether to release or withhold the information.

If OFCCP decides to disclose the information despite the objection, it will notify the contractor in writing and provide the reasons for the decision, along with a specified disclosure date.

Legal Authorities Governing FOIA Requests

The legal framework surrounding these FOIA requests involves Executive Order 12600, which mandates a formal process for notifying entities when their confidential commercial information is subject to a FOIA request. E.O. 12600 is based on the principle that companies are entitled to notification and an opportunity to object to the disclosure of “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential,” which is protected under Exemption 4 to the FOIA.

Regulations require the agency to notify submitters of an FOIA request when it believes that the information requested may be protected from disclosure under Exemption 4 but has yet to decide.

Once notified, contractors are entitled to a reasonable time to object to disclosing potentially confidential data before an agency makes a disclosure determination.

Distinction from Previous FOIA Requests

These new requests are separate from a 2022 FOIA request submitted by the Center for Investigative Reporting (CIR), which sought similar EEO-1 data from 2016 through 2021. Unlike the new requests, the CIR FOIA request is still part of ongoing litigation. Information about the CIR request can be found on the OFCCP’s website for contractors interested in more details on the legal proceedings.

The Importance of the Deadline

For federal contractors, the deadline of December 10, 2024, by 11:59 p.m. is a critical opportunity to prevent the disclosure of potentially sensitive workforce data. OFCCP extended the deadline by one day from the previous December 9, 2024 deadline. Contractors should review their EEO-1 filings carefully and consider whether any part of their EEO-1 Type 2 Report could cause harm to their business interests if released. Objections filed by the deadline will initiate a review process by OFCCP, allowing contractors to provide a rationale for withholding their reports from public disclosure.

Conclusion

Federal contractors impacted by the FOIA requests should act quickly to assess whether they should file an objection to disclosing their EEO-1 Type 2 reports. With a fast approaching December 10, 2024 deadline, contractors must weigh the potential risks of revealing sensitive demographic data and act accordingly. The decision to file an objection could significantly impact the confidentiality of their workforce information and, by extension, their business interests.

For more information, contractors can access the complete list of those affected by the FOIA requests and guidelines on filing an objection on the OFCCP website.