Potential Public Disclosure of Contractor EEO Data – Objections Due September 19.
****OFCCP announced on September 15, 2022 that the deadline for submitting objections to the FOIA request for all federal contractors’ 2016-2020 EEO-1 Type 2 reports has been extended until October 19.****
On August 18, the Office of Federal Contract Compliance Programs (OFCCP) issued a public notice that it has received a FOIA request from an investigative journalism organization for certain demographic information within its possession concerning the workforces of some federal contractors. In particular, the FOIA request is for EEO-1 Type 2 reports filed by contractors between 2016 and 2020, which are reports that show the overall racial and gender breakdown of multi-establishment organizations. (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 September 19, 2022. 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 form 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 has listed several categories of information that should be included in a set of FAQs published the same day as the notice.
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 have filed Type 2 EEO-1 Reports between 2016 and 2020 that would be disclosed pursuant to the FOIA request, 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).]
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 this FOIA request.