Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As outlined in our August 22 Insight, OFCCP announced an intention to produce federal contractors’ Type 2 EEO-1 data in response to a FOIA request from the Center for Investigative Reporting (CIR). Employers were given until September 19, 2022, to file their objections. On September 15, 2022, OFCCP extended the deadline for filing objections to October 19, 2022.
Since OFCCP initially published its notice of this broad FOIA request and its intention to respond by producing the requested reports unless the employer filed a timely objection, some additional details regarding the process have come to light. For purposes of responding to the CIR FOIA request, OFCCP has generated a file for each year between 2016 and 2020 with the Type 2 Report data for every employer that answered “yes” to question 3 in Section C of their EEO-1 filing for that year.1 Employers that have asked OFCCP to confirm if their data is being included in the proposed response have received only a form response advising them to review the records of their EEO-1 filings to see how they answered question 3.2 For the most part, OFCCP has declined to otherwise respond to employer requests to review their actual data that OFCCP is proposing to produce. Employers that have any doubts as to whether their data may be included, therefore, must file objections if they wish to preserve their rights.
OFCCP has focused on the availability of FOIA Exemption 4 as a basis for objection. FOIA Exemption 4 prohibits the government from disclosing records concerning trade secrets and commercial or financial information obtained from a person that is privileged or confidential. Employers that wish to object on this basis should communicate their objections to disclosure by completing the Submitter’s Response Form through the OFCCP Submitter Notice Response Portal.
There may also be other grounds for objection, including FOIA Exemption 3 (recognizing non-disclosure provisions contained in other federal statutes) and Exemption 6 (protecting personal privacy interests).
Employers interested in the applicability of any of the exemptions and the process for asserting them should discuss these issues with their legal counsel.
1 Question 3 reads as follows: “Does the company or any of its establishments (a) have 50 or more employees AND (b) is not exempt as provided by 41 CFR 60-1.5, AND either (1) is a prime government contractor or first-tier subcontractor, and has a contract, subcontract, or purchase order amounting to $50,000 or more, or (2) serves as depository of Government funds in any amount or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Savings Notes?”
2 For more information on the problems caused by the government’s reliance on this question to determine whether an employer’s EEO-1 is responsive to the FOIA request, see David Goldstein and Jim Paretti, OFCCP Plans to Disclose Confidential Employer EEO-1 Data: Can Employers Protect Their Information?, Littler Insight (Aug. 22, 2022).