On August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a notice regarding a Freedom of Information Act (FOIA) request from the Center for Investigative Reporting (CIR) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by all federal contractors, including “first-tier subcontractors,” (covered contractors) from 2016-2020.

The Type 2 EEO-1 report is one of several reports that multi-establishment employers must file annually. These reports consist of a consolidated report of demographic data for all employees by employer establishment, categorized by race/ethnicity, sex, and job category. DOL regulations require the agency to notify submitters of a FOIA request when it has reason to believe that the information requested may be protected from disclosure under Exemption 4 but has not yet made a determination.

Exemption 4 to the FOIA protects against the disclosure of “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” In Food Marketing Institute v. Argus Leader Media, the Supreme Court addressed the meaning of the word “confidential” in the context of FOIA Exemption 4. The Court offered that “where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of Exemption 4.”

Accordingly, OFCCP is asking covered contractors who object to the disclosure of their Type 2 EEO-1 data to submit written objections no later than September 19, 2022. Written objections may be submitted at the portal or via email to OFCCPSubmitterResponse@dol.gov. Objections must include the contractor’s name, address, and contact information for the contractor (or its representative), and should, at minimum, address the following questions to assist OFCCP in evaluating whether Exemption 4 applies to their EE0-1 filings:

  1. What specific information from the EEO-1 Report does the contractor consider to be a trade secret or commercial or financial information?
  2. What facts support the contractor’s belief that this information is commercial or financial in nature?
  3. 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?
  4. 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?
  5. How would disclosure of this information harm the interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor’s economic or business interests)?

Upon receipt of timely objections, OFCCP will independently evaluate the objections. If OFCCP determines it will disclose the contractor’s information despite the objections, OFCCP will notify contractors, in writing, of the basis for not sustaining the objections, the description of the information that will be disclosed, and a specified disclosure date that is a reasonable time subsequent to the notice. Note that in the event that a covered contractor fails to respond to the notice within the time specified, DOL will assume the contractor has no objection to disclosure of this information.

If you have any questions about OFCCP’s notice or require assistance in submitting objections prior to the September 19, 2022 deadline, our Government Contracting Group is available to assist you.