In latest edition of The Wright Toolbox:

• Investigative Reporters Are Looking for Your EEO Data, and Time Is Running Out to File An Objection

Investigative Reporters Are Looking for Your EEO Data, and Time Is Running Out to File An Objection

By: Michael Stover 

On August 19, 2022 the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a notice in the Federal Register advising that a Freedom of Information Act (FOIA) request had been made by the Center for Investigative Reporting for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO–1 Report), filed by federal contractors for a five year period from 2016–2020. An EEO-1 Type 2 report is one of several different types of reports that “multi-establishment” employers must file annually, which consists of a consolidated report of demographic data for all employees categorized by race/ethnicity, sex, and job category at all locations of the organization, including its headquarters. OFCCP estimates that this request covers 15,000 contractors.

The notice states that “OFCCP has reason to believe that the information requested may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, but has not yet determined whether the requested information is protected from disclosure under that exemption.” 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.’’ Executive Order 12600 (E.O. 12600), established a formal process for notifying persons who submit confidential commercial information to the United States when that information becomes the subject of a FOIA request. Accordingly, OFCCP is requesting that all federal contractors that filed Type 2 Consolidated EEO–1 Reports at any time from 2016–2020, and who wish to object to the disclosure of this information, submit such objections to OFCCP by September 19, 2022.

If you wish to file an objection to disclosure, the objection is required to be a detailed written statement, with your contact information, explaining why the information is a trade secret or commercial or financial information that is privileged or confidential. Specifically, the objection should address:

1. The specific information from the EEO–1 Report the contractor considers to be a trade secret or commercial or financial information.
2. The facts that support the contractor’s belief that this information is commercial or financial in nature?
3. Whether the contractor customarily keep the requested information private or closely-held and the steps that have been taken by the contractor to protect the confidentiality of the requested data, and to whom has it been disclosed.
4. Whether the contractor contends that the government provided an express or implied assurance of confidentiality.
5. How disclosure of the information would harm an interest of the contractor protected by Exemption 4.

Objections can be submitted using an OFCCP web form, available here, or by email to OFCCPSubmitterResponse@dol.gov or regular mail to the contact information provided in the notice.

If the OFCCP receives a timely written objection, it is required to “give careful consideration to the objection prior to making a decision whether the requested information should be disclosed or withheld under FOIA Exemption 4.”  If OFCCP determines that disclosure is appropriate notwithstanding an objection, the agency will provide the objecting party written notice of the reason for the decision. If a covered contractor does not submit a timely written objection, OFCCP will assume there are no objections to the disclosure of the information.

If you have any questions regarding this matter, please contact any member of the WCS Government Contracts Practice Group.