Lawsuit seeks to compel OFCCP to produce EEO-1 reports without considering contractor objections
The Center for Investigative Reporting (CIR), and Will Evans, an activist reporter, sued the Department of Labor (DOL) to compel the Office of Federal Contracts Compliance Programs (OFCCP) to produce EEO-1 reports and argued that contractor objections should not be considered under the Freedom of Information Act (FOIA) Exemption 4. The lawsuit has been filed in the U.S. District Court for the Northern District of California.
This fight from CIR and Will Evans has been going on since 2018. In 2019, they obtained a ruling from a U.S. magistrate judge in a California federal district court that EEO-1 reports would not be exempt from FOIA disclosure. The judge determined that the EEO-1 reports do not represent commercial information for purposes of FOIA Exemption 4. OFCCP did not appeal the ruling; however, an employer whose data has been requested tried to intervene and appealed but lost because it had failed to preserve its rights.
On August 19, 2022, OFCCP published a notice in the Federal Register of its intent to release Type 2 Consolidated EEO-1 reports of all federal contractors and first-tier subcontractors, for the past five years in response to a FOIA request. Under FOIA, requestees are entitled to object to the disclose of the report and OFCCP accepted objections from contractors until October 19, 2022.
The plaintiffs seek injunctive relief and declaratory relief, including costs and fees and other appropriate relief. One of the exhibits supporting the lawsuit include a confirmation from OFCCP that it “intends to release to [the plaintiffs] the names of those federal contractors that objected under an applicable FOIA exemption and whose data was removed from public release.”
The objection period is closed and OFCCP is notifying contractors who failed to submit an objection, by email, that their Type 2 EEO-1 data is subject to release under FOIA and that they will release the data after January 2, 2023. OFCCP is allowing contractors to alert the agency of its error with the following statement, “If you believe this determination is in error – for instance, if you believe you are not a federal contractor during the relevant period, or that you did submit a timely objection – please contact our offices as soon as possible, but no later than January 2, 2023, via the contact information below. If you contact us by email, please provide in the email your organization’s unit number and any information supporting your belief that your Type 2 EEO-1 data is not subject to release.” Contractors failing to respond during the initial period, should contact OFCCP at ofccp-foia-eeo1-questions@dol.gov with any legitimate objections.
For more detailed information, please read our past blogs related to this topic. We will keep you apprised of future decisions or developments.