On August 18, 2022, the U.S. Department of Labor’s Office of Federal Contractor Compliance Programs (“OFCCP”) received a Freedom of Information Act (“FOIA”) request for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (“EEO-1 Reports”) filed by federal contractors from 2016 through 2020. Any federal contractor that wishes to object to the disclosure of its EEO-1 Reports in response to this FOIA request must do so by September 19, 2022. The following Client Alert addresses several “Frequently Asked Questions” related to this FOIA request and possible exemptions, as well as recommended next steps.
1. What is a FOIA request?
A FOIA request is a request submitted to a government agency, in this case the OFCCP, asking the agency to release records that are not typically publicly available. Any person can make a FOIA request on behalf of themselves or some other entity. In the instant case, Will Evans of the Center for Investigative Reporting (“CIR”) has requested that the OFCCP disclose the EEO-1 reports for all federal contractors from 2016-2020 (the “FOIA Request”). CIR has previously used information obtained from prior FOIA requests to criticize the hiring practices of impacted employers.
2. What information is contained in an EEO-1 Report?
Type 2 Consolidated EEO-1 Reports consist of a consolidated report of a company’s demographic data for all employees categorized by certain demographics (race/ethnicity and sex) and job categories (executives, professionals, technicians, sales workers, etc.). If an employer does not object to the FOIA request by September 19, 2022, the OFCCP will assume the government contractor has no objection and release the company’s EEO-1 Reports.
3. What type of information is exempted from disclosure under the FOIA?
Exemption 4 of the FOIA protects from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” There is a strong argument here that most employers’ EEO-1 reports would fall within the scope of exemption 4. To successfully assert this exemption, the government contractor must show that its EEO-1 Reports are the type of records/documentation that it typically keeps confidential, and that the company has actually kept the EEO-1 Reports and underlying data confidential (i.e., has not released the information to the public or its employees at large).
The OFCCP has issued a FOIA Questionnaire for employers to respond to in support of any objection to the FOIA Request under Exemption 4. These questions are:
- Do you consider information from your EEO-1 report to be a trade secret or commercial information? If yes, please explain why.
- Do you customarily keep the requested information private or closely-held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed.
- Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to question 4.
- If you answered “no” to question 3, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.
- Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.
- Are there other legal issues OFCCP should be aware of? If yes, please explain.
4. Should employers object to this FOIA request?
Government contractors (including prime contractors and first-tier subcontractors) that have 50 or more employees and a contract, subcontract or purchase order worth $50,000 or more are required to file EEO-1 reports with the OFCCP, and these reports are subject to disclosure pursuant to the FOIA Request.
In addition to traditional government contractors, OFCCP has concluded, through a “FAQ” posted on its website, that deposit insurance is a federal contract and, consequently, banks are federal contractors because they accept this insurance. Although this conclusion is disputed by many, the issue of whether a particular bank’s EEO-1 reports are subject to disclosure depends on the contents of the bank’s prior EEO-1 reports. Accordingly, banking institutions are encouraged to consult with counsel to determine if the OFCCP likely considers them to be a federal contractor for the purpose of releasing the EEO-1 information at issue. If a government contractor has not previously disclosed the information contained in its EEO-1 Reports, it is recommended that the government contractor object to the FOIA Request as it is unclear how this information will be utilized. The EEO-1 data at issue will be released without context and the government contractor will not have the opportunity to explain any nuances in the data. It is possible that an employer’s competitors could use the data contained in EEO-1 reports to discern sensitive, competitive information, such as hiring strategies and staffing ratios. Finally, if the government contractor does not object to the disclosure of its EEO-1 data at this stage, it may undercut its ability to object in future litigation or administrative proceedings.
5. Next steps.
If a government contractor opts to submit an objection to the FOIA request, it should submit its written objection via email to OFCCPSubmitterResponse@dol.gov or by responding to the FOIA Questionnaire on the OFCCP’s Submitter Notice Response Portal located here: https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal#access. The government contractor will also have to identify a point of contact at the company and provide his or her contact information.
If you would like to discuss your company’s options or would like the Firm to prepare objections on your company’s behalf, please contact Cullen Stafford at firstname.lastname@example.org. If you have any other questions related to this Client Alert, please contact a member of our Labor & Employment Practice Group.