Deadline to Respond to FOIA Request for EEO-1 Reports

Summary of the Issue

An investigative reporter (Will Evans, of the Center for Investigative Reporting) requested the records of EEO-1 Consolidated Reports (Type 2) for all federal contractors from OFCCP for the 2016 through 2020 filing years (this affects an estimated 15,000+ contractors per OFCCP estimates). OFCCP reached out today to all contractors in its database and posted notice publicly about this as it has to give impacted companies the ability to object to the disclosure by making an argument under the FOIA Exception 4 – that the information is confidential, and the release would be harmful to your company. Contractors have 30 days from today (through September 19, 2022) to object. If contractors choose to object, OFCCP provided the format and portal those objections should be made through, as well as an FAQs page (question 10 outlines what information should be submitted, at a minimum).

 If you never filed a type-2 report from 2016-2020, nothing will be disclosed from your EEO-1 reports and this does not pertain to your company. You will have filed the Type-2 report only if you were a multi-establishment employer. Single establishment employers file Type 1 reports only.

What’s an EEO-1 Consolidated (Type 2) Report again?

This report includes data for all employees of the company (i.e., all employees at headquarters as well as all establishments) categorized by race/ethnicity, sex, and job category. It looks like this (Netflix releases their reports on their website, so we’ve used them as an example):

What are our chances of successfully objecting to this request?

OFCCP’s Notice in the Federal Register mentions a court case in which 10 employers subject to the exact same request were unsuccessful in arguing that these reports were confidential. The reasons the court found their arguments for the Type 2 Reports being confidential were that their arguments were found to be “conclusory” and containing “verbatim rationale.” The takeaway – it’s unlikely you will be successful at arguing these reports are confidential, but if you are to make an argument, the argument must demonstrate why, in your company’s specific circumstances, these reports should be considered confidential. (For more information – the court case is Center for Investigative Reporting v. U.S. Dep’t of Labor, 424 F. Supp. 3d 771 (N.D. Cal. 2019)).

Next Steps

If you are not going to object – do nothing. The reports will then be produced by OFCCP per the FOIA request. You do not need to do anything else. (Side note: If you never filed a type-2 report from 2016-2020, nothing will be disclosed from your EEO-1 reports. This only applies to single-establishment companies.)

If you are going to object – provide, at a minimum, answers to the below questions no later than Sept 19, 2022 to OFCCP through their FOIA Portal set up for this specific purpose. Contractors are encouraged to provide “as much information as possible addressing why they believe their Type 2 EEO-1 Report data should not be released under FOIA, including whether the information is commercial/financial and confidential.”

  1. Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.
  2. 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?
  3. 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.
  4. 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.
  5. 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.

What is the risk to a contractor if/when the Type 2 EEO-1 report is disclosed?

This will depend based on the company, and it may well be that there are legitimate business concerns; but there are not well-established or well-known risks to the disclosure of this information (otherwise it would have been a simple task to claim that it should be protected under the FOIA Exemption 4 in the court case cited above.). Someone with this consolidated-type of information could conduct various analyses about companies’ overall trend in growth over a 4-year period or investigate changes over time broadly or company and industry-wide regarding management representation. Some companies already have decided to publish this information (see the previous example of Netflix) and others have been required (or will be) by various states, like Illinois. Consult with your business leaders and legal team to determine if there are arguments that should be made as to the reason that your company’s type 2 reports contain trade secrets, commercial information, the disclosure of which could cause legitimate harm to your economic business interests.

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