On August 19, 2022, OFCCP published a notice in the Federal Register for the stated purpose of advising employers that in response to a Freedom of Information Act (FOIA) request, it is planning to produce confidential information that is protected from disclosure pursuant to a statutory exemption. Employers have been given until September 19, 2022 to file written objections to prevent the disclosure of their information.

Background

The EEO-1 Report

Employers with 100 or more employees that are subject to Title VII are required to file EEO-1 reports annually. Employers with 50 or more employees that hold certain federal contracts are also required to file EEO-1 reports annually even if they have under 100 employees. EEO-1 reports must be filed for each of an employer’s locations (or “establishments”) and include information on the number of employees working at the establishment as of a moment in time, reported by Job Category, and including information regarding the employees’ sex and race or ethnicity. In addition to separate reports for every establishment, the annual filing must also include a so-called Type 2 Consolidated Report, which aggregates all of the data for all of the establishments. In situations where multiple legal entities are affiliated through a parent, it is the parent that is required to file EEO-1 reports for all of the related companies and the Type 2 Report will aggregate all of the employees for all of the establishments of all of the companies in the corporate family.

Freedom of Information Act Requests for EEO-1 Reports

By law, the EEOC is prohibited from making public an employer’s EEO-1 data. This prohibition extends to requests pursuant to FOIA. OFCCP, on the other hand, relying on a 1974 per curium decision of the D.C. Circuit,¹ takes the position that EEO-1 reports in its possession are not subject to the same prohibition.

Accordingly, OFCCP has long had in place a process for handling FOIA requests for EEO-1 reports. Pursuant to this process, when a request is made to OFCCP for a federal contractor’s EEO-1 reports, OFCCP has sent a letter to the contractor notifying the contractor of its rights. The contractor then has the option of requesting from OFCCP copies of the documents or information that OFCCP plans to produce in response to the request and to then raise any appropriate objections to the production.

Federal agencies that receive FOIA requests must produce the requested information if such information falls within the scope of the law and is not subject to one of a number of objections that have been established by statue. FOIA Exemption 4 protects confidential commercial information from being disclosed. OFCCP has regularly sustained objections to FOIA requests for EEO-1 information on the basis of Exemption 4. The decision of the U.S. Supreme Court in Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2365 (2019) supports this application of the exemption by OFCCP.

CIR’s Request for EEO-1 Data and the Problem with OFCCP’s Response

According to the Federal Register notice, OFCCP is responding to a FOIA request that was first submitted in January 2019 by Will Evans of the Center for Investigative Reporting (CIR) and has been amended several times. The current version of this FOIA request apparently seeks Type 2 Consolidated Employer Information Reports filed by federal contractors, including first-tier subcontractors, from 2016 through 2020. Presumably this means that any employer that answered “Yes” to question 3 in Section C of the Report during any of these years is now at risk for having its EEO-1 reports made public. 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?

In our experience, many employers are confused by this question so that it is not uncommon to see it answered incorrectly. More often than not, the error takes the form of a non-government contractor incorrectly identifying itself as a government contractor. As a result, OFCCP ends up receiving copies of EEO-1 reports for non-government contractors.

EEO-1 reports must be filed by a parent company on behalf of all of its subsidiaries. It is not uncommon for a family of companies to include some entities that are federal contractors and others that are not. Unfortunately, the EEO-1 reporting system has generally required the parent to either identify itself and all of its subsidiaries as federal contractors or to identify neither itself nor any of its subsidiaries as federal contractors. Accurate reporting is simply not possible as the system has been configured. This is another mechanism by which OFCCP ends up in the possession of EEO-1 data for non-government contractors.

Finally, we know that in attempting to identify federal contractors for compliance reviews, OFCCP regularly makes mistakes by including in its Corporate Scheduling Announcement Lists employers that are not federal contractors.

For all of these reasons, it is almost certain that OFCCP has EEO-1 information for employers that are not federal contractors, which the agency currently intends to make public in response to this FOIA request even though the information is not subject to release through FOIA.

Employer Options for Responding to the Federal Register Notice

Ask OFCCP to Identify What it Plans to Produce

OFCCP’s attempt to provide written notice to the employers whose data the agency is considering publishing is woefully inadequate. In its August 19, 2022, Federal Register Notice, OFCCP estimates that the CIR FOIA request covers approximately 15,000 unique government contractors, but those contractors are not identified. For the reasons discussed above, it is virtually certain that OFCCP is preparing to publish information for at least some employers that are not federal contractors.

For this reason, any employer – regardless of whether it is a government contractor – that is concerned about maintaining the confidentiality of its EEO-1 data should consider contacting OFCCP to ask whether its EEO-1 data is being included in this planned production and, if it is, to request a copy of the information that OFCCP is planning to produce.

Asking for a copy of the actual data that OFCCP is planning to produce is particularly important because of the possibility that OFCCP may inadvertently include data beyond the scope of the request, producing, for example, reports for other years or entities, or reports in addition to the requested Type 2 Consolidated Report.

Employers that request copies of the data that OFCCP is intending to disclose may also wish to request an extension of time in which to file any objections. Requesting 30 days from receipt of the requested documentation would seem reasonable.

The Federal Register Notice advises employers that written objections to the disclosure of their information should be submitted by U.S. Mail to or via email at OFCCPSubmitterResponse@dol.gov.

Adding to the confusion created by the Federal Register Notice, some employers were previously notified of what would appear to be the same CIR FOIA request one or more years ago and objected to disclosure at that time. The new Notice does not make it clear whether OFCCP intends to honor these prior objections.

Decide Whether to Object

Over the past few years many employers have decided to voluntarily publish portions of their EEO-1 reports. Often it is the Consolidated Report that such employers choose to publish. Employers that are already choosing to publish this data would not have grounds to object to the publication of the same data in response to a FOIA request.

Non-government contractors that determine that OFCCP is intending to publish their EEO-1 data in response to the CIR FOIA request will have independent grounds for objection beyond those provided by Exemption 4 and may wish to assert all of their objections.

Government contractors that determine that OFCCP is intending to publish their EEO-1 data in response to the CIR FOIA request will most obviously wish to rely on Exemption 4 as the basis for their objections. However, this is not to say that there are no other grounds for objection. Employers that are particularly concerned with these issues should consult legal counsel to discuss other possible avenues for relief.

And, of course, an employer may also appropriately object to any intended disclosure of EEO-1 data that is beyond the scope of the CIR FOIA request.

Public Policy Implications

The CIR FOIA request and OFCCP’s current plan for responding to the request raise two different public policy concerns.

The first concern arises out of the minimal safeguards that are in place to ensure that OFCCP does not mishandle confidential employer and employee information. While the EEOC is required by statute to keep information confidential and EEOC personnel are subject to criminal sanctions for failing to do so, OFCCP is not. Resolving this problem would require that Congress enact, likely as a rider to other legislation, restrictions on the disclosure of confidential information by OFCCP, including EEO-1 data, that are comparable to the restrictions that have always applied to the EEOC.²

The second concern relates to this new process that OFCCP is seeking to implement in connection with FOIA requests.

OFCCP requires government contractors to provide all kinds of sensitive information including employee contact information, personnel files, pay records, etc. When turning over this type of information, contractors have to rely on OFCCP to maintain this information securely and respect its sensitivity. The FOIA exemptions recognize the importance of protecting private parties’ confidential information from disclosure and the government’s procedures for handling FOIA requests have been designed to protect these legitimate interests in confidentiality.

Contractors’ rights to prevent the publication of confidential data become meaningless, however, if OFCCP adopts procedures for resolving FOIA requests that fail to ensure that contractors will receive adequate notice of such requests and a fair opportunity to object. The procedure that OFCCP has now adopted with regard to this particular FOIA request sets concerning precedent. It is critically important that OFCCP understand and resolve the flaws in the approach that it has now adopted in response to the CIR FOIA request.