Federal Contractors Must File Objections to Prevent the Release of EEO-1 Reports Under FOIA

Key Takeaways

• The OFCCP has received two requests for contractors' 2021 EEO-1 reports under FOIA.
• Contractors must object to disclosure by Tuesday, December 10, or risk public release of workforce information.
• Objections must include sufficient evidence of policies and practices on confidentiality, including evidence that the contractor has not previously disclosed the information publicly.

On October 29, the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) published a public notice that it received two requests for contractors' 2021 Type 2 Consolidated EEO-1 Reports under the Freedom of Information Act (FOIA). The requests come from the University of Utah and As You Sow, a nonprofit organization that promotes environmental corporate accountability. Even though your company was not contacted directly, if you are a federal contractor and your company filed a Type 2 Consolidated EEO-1 Report in 2021, you must object to the disclosure by Tuesday, December 10, or risk public release of sensitive information about your workforce.

What Information Is at Risk of Disclosure?

The two FOIA requests seek EEO-1 report data from 2021. EEO-1 reports are annual reports submitted to the Equal Employment Opportunity Commission detailing employee "demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category." EEO-1 reports are required for any employer with 100 or more employees. In addition, federal prime contractors and first-tier subcontractors must file EEO-1 reports if they have (a) 50 or more employees and (b) a contract, subcontract or purchase order for $50,000 or more. The OFCCP has created a list of contractors whose reports are subject to the FOIA request and potential disclosure.

The latest OFCCP public notice is similar to a request made in 2022 by a reporter with the Center for Investigative Reporting (CIR). At that time, the OFCCP allowed contractors to file objections to prevent disclosure of their EEO-1 reports, and contractors that did so prevented release of sensitive information about their workforce. Subsequently, the CIR filed a lawsuit seeking the release of the requested information. While that case is still waiting on oral arguments at the U.S. Court of Appeals for the Ninth Circuit, the EEO-1 reports of contractors that filed objections have remained protected from disclosure. However, thousands of other contractors' data was already released as a result of those contractors affirmatively consenting to release or failing to file objections.

How Can Contractors Protect Their Information?

To begin, contractors must file a timely objection explaining why their EEO-1 data is exempt from disclosure. Failing to object by December 10 will lead to the OFCCP assuming there was no objection to disclosure and the release of information. Therefore, it is important that contractors check what information they have submitted in their EEO-1 reports and whether they want to keep that information from the public.

While the government is required to release information requested through FOIA, there are exemptions for certain categories of documents. 5 U.S.C. § 552(b)(4) - also known as Exemption 4 - exempts the disclosure of documents, including any "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential." To help determine whether an EEO-1 report falls under Exemption 4, contractors' objections need to explain why the EEO-1 information is both commercial and confidential.

To show that the information is confidential, the contractor must show that the information meets the Supreme Court's definition found in Food Marketing Institute v. Argus Leader Media. In that decision, the Supreme Court explained that "confidential" for Exemption 4 purposes means that the contractor actually and customarily kept the information private. Contractors must provide specific evidence of policies and practices on confidentiality, including the fundamental point that the company has not previously disclosed the information publicly. Indeed, the OFCCP's public notice explicitly asks contractors to explain the following:

• Does the contractor customarily keep the requested information private or closely held?
• What steps have been taken by the contractor to protect the confidentiality of the requested data, and to whom has it been disclosed?
• Does the contractor contend that the government provided an express or implied assurance of confidentiality? If no, were there express or implied indications at the time the information was submitted that the government would publicly disclose the information?
• How would disclosure of this information harm an interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor's economic or business interests)?

Contractors can file objections by submitting them through a web portal or emailing them to [email protected]. We are available to help draft and file objections to the release of this data, as we have already helped numerous clients assert their objections to disclosure.

If you have questions about how the FOIA request for EEO-1 reports could impact your business, please contact Kevin Barnett, Carrie Valdez or another member of the firm's Government Contracts team or Labor and Employment Practice Group.