New FOIA Requests for EEO-1 Data Mean the Clock is Ticking for Federal Contractors to Object
On October 29, the federal Office of Federal Contract Compliance Programs (OFCCP) issued a public notice that it has received two FOIA requests for certain demographic information concerning the workforces of some federal contractors. In particular, the FOIA requests are for EEO-1 Type 2 reports filed by contractors for the 2021 reporting year, which are reports that show the overall breakdown of multi-establishment organizations by race and sex. (EEO-1 Type 2 reports do not include compensation data, however.)
Because these EEO-1 Type 2 reports may contain information that employers deem confidential, OFCCP is asking all contractors who object to their public disclosure to file written objections with the agency by December 9, 2024. Under the law governing FOIA requests, “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential” are protected from disclosure. OFCCP will disclose this information unless the agency determines, on the basis of a contractor’s written objection, that the information is protected from disclosure.
The OFCCP is encouraging contractors to submit their written objections using an online portal created for that purpose. Contractors may also submit objections to the agency via email to OFCCPSubmitterResponse@dol.gov. Those choosing to submit objections should note that OFCCP’s notice lists several categories of information that should be included in the objection.
We encourage contractors to make the decision regarding whether to object soon so that they or outside counsel can begin drafting their objections well before the deadline. If contractors are uncertain whether they filed Type 2 EEO-1 Reports in 2021 that would be disclosed pursuant to the FOIA requests, they can check using the EEO-1 Online Filing System. [At the Company Dashboard, contractors may access prior year reports by clicking on Historic Data (Prior EEO-1 Reports).] Contractors can also check the list of contractors affected here.
Please contact one of the authors or your normal contact at Miller Johnson if you have any questions or would like assistance drafting objections to these FOIA requests.