EEO-1 Report Filers: Beware of Possible Public Disclosure of Federal Contractor Data!
On August 19, 2022, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a public notice calling for objections to a Freedom of Information Act (FOIA) request from the Center for Investigative Reporting (CIR) for all EEO-1 Reports submitted between 2016-2020. The OFCCP believes that the requested information may be protected from disclosure under FOIA Exemption 4, which protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” See 5 U.S.C. § 552(b)(4)(2000). However, it remains incumbent upon companies to provide written notice to OFCCP confirming their objection to the release of their EEO reports. Companies who filed an EEO-1 Report between 2016-2020 must object, with a written response, to the disclosure or risk the public release of sensitive commercial information about their workforce.
Initially, the deadline to submit a response was September 19, 2022. In response to numerous requests for extensions of time to submit objections and inquiries as to whether a specific contractor is covered by the FOIA request, the OFCCP has extended the deadline for comments to October 19, 2022.
The EEO-1 Report is one of several Type 2 Consolidated Employer Information Reports and consists of a company’s demographic data of its employees, categorized by race/ethnicity, sex, and job category. The Equal Employment Opportunity Commission (EEOC) requires all employers with 100 or more employees to annually file the EEO-1 Report with the EEOC. Federal contractors and first-tier subcontractors covered by Executive Order 11246 and that employ 50 or more employees, are also required to annually file the report with the OFCCP. For convenience, all required reporters file directly to the EEOC which houses the EEO-1 Joint Reporting Committee, responsible for processing and forwarding the reports to the OFCCP.
The EEO-1 Reports filed at the EEOC are protected from public disclosure under section 709(e) of Title VII of the Civil Rights Act of 1964, which prohibits disclosure of employment data from compliance surveys, such as the EEO-1 Report. However, the EEO-1 Reports received by the OFCCP are subject to FOIA provisions and are required to be disclosed under a FOIA request. The OFCCP, complying with Executive Order 12600, is required to notify submitters of confidential information when the information is the subject of a FOIA request and the OFCCP believes that the requested information may be protected from disclosure under Exemption 4. See 29 CFR § 70.26. Exemption 4 protects against the disclosure of “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. 552(b)(4). The OFCCP believes that the CIR FOIA request potentially covers approximately 15,000 unique contractors.
How to file an objection and protect your confidential information:
Contractors must file a timely objection explaining why their EEO-1 Reports should be protected from disclosure under Exemption 4 to the OFCCP by October 19, 2022. In the objection, contractors need to show that the requested information meets the Supreme Court’s definition of “confidential” under Exemption 4, by explaining how the contractor customarily keeps the requested information private or closely held. See Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019).
Contractors can submit their written objections through a web form on https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal or by email at OFCCPSubmitterResponse@dol.gov. The objections should contain the contractor’s name, address, contact information, and address the following questions in detail:
- 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 no, 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 an interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor’s economic or business interests)?
The questions reflect the step-by-step guidance used by agencies to determine whether commercial or financial information is “confidential” under Exemption 4. In addition, it is best for contractors to avoid conclusory declarations in their written objections. In 2019, the United States District Court for the Northern District of California held that the EEO-1 Reports subject to a FOIA request was not “commercial” under FOIA Exemption 4 and could not be withheld from disclosure despite the federal contractor’s objections. See Center for Investigative Reporting v. U.S. Dep’t of Labor, 424 F. Supp. 3d 771 (N.D. Cal. 2019).
Contractors should also know that even after consideration of the objection, the agency may determine that disclosure of the EEO-1 Reports is appropriate and will notify the submitter with written notice of the reason for disclosure and a specified disclosure date. The OFCCP will assume that a contractor has no objection if they fail to submit a timely response to the notice.
While the OFCCP has expressed the intent to email the contractors that OFCCP believes are covered by the FOIA request, contractors should still verify whether they are included in the FOIA request. Covered Contractors should check information submitted in their EEO-1 reports and determine if they wish to protect it from public disclosure.
If you have any questions about EEO-1 Reports, submitting an objection to the OFCCP, or protecting your confidential information submitted to a federal agency from FOIA requests, reach out to us at Ward & Berry.