Recent Developments in EEO-1 Reporting and FOIA Exemption

In recent legal developments, we delve into two crucial aspects of Equal Employment Opportunity (EEO) reporting and Freedom of Information Act (FOIA) exemptions that have been making headlines. These events shed light on the intricacies of federal reporting requirements and data protection concerns. Let's explore these two significant narratives.

FOIA Ruling on EEO-1 Reports

Federal Judge William Alsup determined that EEO-1 Report Component 1 data are not protected under the FOIA exemption for confidential commercial information. This ruling comes after a long saga, in which the Department of Labor (DOL) faced a FOIA request for EEO-1 filings. Here's how it unfolded:

• Background: It all began in January 2018 when plaintiffs submitted a Freedom of Information Act (FOIA) request to the Office of Federal Contract Compliance Programs (OFCCP) seeking disclosure of 2016 EEO-1 reports for 55 companies, of which 36 were government contractors. Twenty of the 26 companies objected to the release of the data on grounds of FOIA Exemption 4.
• FOIA Exemption 4: OFCCP initially believed the information requested might be protected under FOIA Exemption 4, which safeguards confidential commercial information.
  Initial Court Decision: On December 10, 2019, Magistrate Judge Kandis Westmore ruled that the government “failed to make a showing that the demographic information contained in the EEO-1 reports is commercial.” 
• Ongoing Saga: The process involved multiple updates, objections, and extended deadlines for contractors, with the last update in April 2023.
• Recent Ruling: In December 2023, federal Judge Alsup ruled that EEO-1 Reports were not fundamentally "commercial" and could not be protected under FOIA Exemption 4.
• Key Points: The judge emphasized that EEO-1 Reports' data lacked commercial insight, and releasing five years' worth of data would not reveal specific commercial information. However, there was no ruling on whether this information was privileged or confidential.  
• Next Move: OFCCP has until February 20, 2024, to produce the EEO-1 reports at issue or appeal the decision 

EEO-1 Technical Issues

In parallel, the U.S. Equal Employment Opportunity Commission (EEOC) encountered technical display issues in the EEO-1 Component 1 Online Filing System (OFS) for reports from 2015 to 2021. Key details include:

• Technical Glitch: The EEOC discovered a programming error that swapped employee numbers between "Native Hawaiian or Other Pacific Islander" and "Asian" categories in downloaded versions of previously certified reports for the 2015 to 2021 EEO-1 cycles, but not the 2022 EEO-1 platform data.
• Resolution: The third-party administering the EEO-1 Component 1 Online Filing System (OFS) corrected the error. EEOC instructed filers to delete PDF files of any historical EEO-1 reports from 2015 to 2021 that were downloaded from the platform between October 31, 2023, and December 4, 2023. Filers can then access the EEO-1 filing platform to obtain updated historical reports. 

Potential glitches in the EEO-1 filing system, coupled with the release of the data as allowed by the recent court ruling, have introduced uncertainty and challenges in the reporting process. While the court ruling opens the door to the disclosure of certain EEO-1 data, the technical glitches in the filing system have raised concerns about data accuracy and confidentiality. Even though the glitch was caused by the government and immediately discovered and fixed, this combination of factors underscores the need for organizations to be vigilant in their EEO-1 reporting, emphasizing data security and accuracy in an evolving regulatory landscape