Contractors Hit with New FOIA Request for EEO-1 Data

The OFCCP has published notice in the Federal Register regarding a new Freedom of Information Act (FOIA) request the agency has received demanding federal contractors’ consolidated (Type 2) EEO-1 reports in the OFCCP’s possession from the 2021 reporting cycle.

The FOIA request was filed by the University of Utah and a non-profit organization called, “As You Sow,” that promotes environmental and corporate responsibility through shareholder advocacy.

Before releasing contractors’ EEO-1 data, the OFCCP is giving federal contractor employers an opportunity to file an objection to the release of their report(s). Contractors have until Monday, December 9, 2024 to file their objections with the OFCCP, representing 40 days from publication of the notice.

Readers will likely recall that the OFCCP recently fielded a similar request in 2022 for all EEO-1 reports filed by federal contractors for the 2016-2020 filing seasons.

Berkshire recommends that all federal contractor employers bring this notice to the attention of their legal counsel for advice and/or handling. Several contractors already make their consolidated EEO-1 reports, or similar data, available to the public and may choose not to object.

The OFCCP has set up an “OFCCP Submitter Notice Response Portal” which, despite the cumbersome name, provides impacted organizations with a host of useful information, including FAQs, a link to contact the OFCCP with questions, a link to submit actual objections through an online form, and perhaps most importantly a list of affected organizations.

The agency also has a dedicated web page, accessible from their Freedom of Information Act Library, dedicated to FOIA requests specifically for EEO-1 data. This page links to the list of affected organizations as well.

Contractors that do not object to disclosure of their 2021 consolidated EEO-1 report do not have to take any action. The OFCCP will assume that if an objection is not received by the deadline, the organization does not object, and the OFCCP will begin the process to release those reports.

For those who do want to file an objection, the OFCCP is requesting they provide:

• First and last name of the organization’s point of contact (POC);
• The POC’s contact information (phone and email);
• Organization name and address; and
• The parent organization’s EEO-1 unit number.

Past that, the agency recommends that contractors provide as much information as possible regarding why they believe their Type 2 EEO-1 data should not be released, including whether the information is commercial/financial and confidential. At a minimum, they also suggest answering the following questions:

• 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 the next question.
• If you answered “no” to the previous question, 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.

If a contractor submits an objection via email or by physical mail, the OFCCP will receive a confirmation of receipt from the agency via the same method. Oddly, though, if contractors use the OFCCP’s portal to submit an objection, they will need to separately email the agency for confirmation of receipt (despite providing contact information for the organization’s official “point of contact” in the portal).

The email address for FOIA objections is OFCCPSubmitterResponse@dol.gov.

The physical address for FOIA objections is:

ATTN: FOIA Officer (FRN)

Office of Federal Contract Compliance Programs

Division of Management and Administrative Programs

200 Constitution Avenue, N.W., Suite C3325

Washington, D.C. 20210

Note also that if submitting by mail, the OFCCP will only entertain responses received by the day after the deadline, December 10, regardless of when it was mailed (postmarked).

For contractors that do file objections, the OFCCP’s FAQs note that contractors will be “notified” if the objection is accepted, but does not specify what form that notice will take. If the OFCCP rejects an objection, however, the OFCCP commits to providing written notice of those decisions.

Finally, the OFCCP itself generally believes that the data probably should be protected from disclosure under FOIA, but is not making a blanket decision. Chances are very high that if a reasonable objection is received, the OFCCP will withhold the objector’s data from release.

If you have questions about this or any other OFCCP-related matter, feel free to contact your Berkshire consultant, or Berkshire Associates generally at BAI@berkshireassociates.com