The deadline to object to EEO-1 FOIA request is September 19, 2022

The Office of Federal Contracts Compliance Programs (OFCCP) published a notice of its intent to release Type 2 Consolidated EEO-1 reports of all federal contractors, including first-tier subcontractors, for the past five years in response to a Freedom of Information Act (FOIA) request. The request does not include the Type 3 Headquarters or the Type 4 Individual Establishment reports or the Component 2 pay data. The original FOIA request was made by the Center for Investigative Reports in 2019 and amended on June 2, 2022, to include all “such data submitted by contractors and first-tier subcontractors from 2016 until 2020.”

Under the FOIA, requestees are entitled to object to the disclosure of requested EEO-1 reports. Objections must be received by September 19, 2022. Since the FOIA request is so large, OFCCP has publicly published a Notice of the Request and launched a Response Portal where federal contractors (and subcontractors) can submit objections. To assist contractors with this decision, the agency has also provided FAQs. Contractors having questions not identified in the FAQs may contact the OFCCP FOIA Help Desk by phone or email. When calling (1-855-680-0971) about technical issues or other questions, callers should reference the Submitter Notice Response Portal. Inquiries can also be sent to OFCCPSubmitterResponse@dol.gov.

Contractors objecting must provide their name, address, and contact information for the company representative. Additionally, they should address the following questions.

• What specific information from the EEO-1 Report does the contractor consider 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 who 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)?
  
  

The responses collected from the OFCCP web form “will be evaluated to determine whether the requested information includes confidential trade secret, commercial, or financial information that should be withheld pursuant to FOIA Exemption 4. OFCCP stated that it will “independently evaluate” the objections that are submitted. If OFCCP determines that the disclosure is appropriate, it will provide written notice to the contractor for the reason and a date when the disclosure will be made.

OutSolve’s Take

Contractors that fail to consider this FOIA request and do not respond with their objections by the September 19 deadline must be aware that OFCCP will release the Type 2 report to the Center for Investigative Reporting. What the agency plans to do with the information is unknown. Contractors choosing to object must also be able to make a case under FOIA Exemption 4 and should seek counsel with preparing their objections. Companies that regularly release this data to shareholders and outside organizations may have a more difficult time objecting.

Since the Type 2 report shows the racial and gender demographics by EEO-1 occupational category across the entire organization, contractors may want to see if there are any patterns over the five-year period and evaluate the implications of its release.

This FOIA request is one example of the trend of increasing transparency. Some of this increased disclosure is dictated by regulators while other data is being requested by investors or customers. Companies with an existing Environmental, Social, and Governance (ESG) report may use the ‘Social’ section of their report to highlight their EEO-1 data and the progress they have made in improving their race and gender data by job category. If their progress has fallen short of their desired goals, then companies may use this as an opportunity to discuss the steps they are taking in terms of outreach and employee development. Companies without an existing ESG report may want to consider implementing one as a way of communicating their narrative around the EEO-1 data.

To discuss the FOIA request, or any details on how your EEO-1 data can plug into your ESG efforts, please contact your consultant at info@outsolve.com, or by calling 888-414-2410.