What Can Exempt You from the FOIA Request?

The question is “to object or not to object” to the release of your company’s 2016 through 2020 EEO-1 Type 2 Consolidated Reports (not to be confused with the Component 2 – which is compensation data). Please note this applies only to multi-location filers. Single-location companies do not file this report and are not subject to the request.

The Type 2 report totals the employees in your workforce across all establishments by EEO-1 category and race/ethnicity and gender. If you do not object, the OFCCP will release your report to the individual who submitted a FOIA request for all federal contractor Type 2 reports. If you do object in writing to the OFCCP, they will make a determination based on your reasons whether you have valid objections based on Exemption 4 of the FOIA (Freedom of Information Act), which protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” Read more here at the DOJ website. We encourage you to meet with your management and legal team to determine whether release of this information could lead to release of information that Exemption 4 would protect (there are technically 9 different exemptions – see FOIA’s FAQs, here).

Will Evans, the reporter who filed this FOIA request, published an article on August 29, 2022 about how his organization, the Center for Investigative Reporting (CIR) has used EEO-1 data in the past, specifically:

• “[CIR] used those voluntary reports in a series of stories quantifying the severe lack of diversity in the tech industry, where less than 2% of professionals at the largest companies were Black or Latina women in 2016.”
• “It turned out companies’ diversity stats were just embarrassing. [COMPANY], for example, had no female executives at the time and no women of color in management at all —particularly bad representation”
• “The EEO-1 reports offer a starting point for comparing diversity across similar companies and addressing inequality.”

The court has shown it will consider first whether the company treats their Type-2 Consolidated EEO-1 Reports as confidential. If a company publicly posts those reports already or through sustainability reports that mirror the EEO-1 reports, then an objection is not likely to succeed. If the company treats this information as confidential and believes it has grounds to make a case under Exemption 4 of the FOIA, it should be completed by October 19^th (extended from the previous deadline of September 19^th). When deciding whether to object, also consider whether the possibility of the objections become publicly available would be beneficial or harmful to the company’s public image.

The courts have considered the following when evaluating objections under Exemption 4 of the FOIA:

1. whether the company treats the information as confidential; and,
2. whether the company has demonstrated the disclosure would result in foreseeable harm.

Foreseeable harm can be framed in different ways. Some companies have claimed the disclosure of the number of employees they have in high competition positions could in some way compromise their company’s operations. Others have noted privacy concerns due to a small number of people in certain positions. Since the data is aggregated, the company will have to determine whether these or other objections are likely to be successful based on their unique circumstances.