In response to two new Freedom of Information Act (FIOA) requests, the Office of Federal Contract Compliance Programs (OFCCP) is offering all federal government contractor organizations 40 days from October 29, 2024 (deadline December 9, 2024) to file written objections to the OFCCP’s anticipated disclosure of the 2021 EEO-1, Type 2 Consolidated Reports. The Type 2 Reports include data for all employees of the company (i.e., all employees at headquarters as well as all establishments) categorized by race/ethnicity, sex, and job category. For those that objected to the release in response to previous FOIA requests, (more info here) you must object again.
OFCCP is providing notice to contractors covered by this FOIA request through a published Notice in the Federal Register, an e-mail to all federal contractors for whom OFCCP has contact information, and the Submitter Notice Response Portal. They have also provided a set of Submitter Notice Response Portal frequently asked questions (FAQs).
Contractor’s objections to this release should respond to the following five questions:
- What specific information from the 2021 EEO-1 Report does the contractor consider to be a trade secret or commercial or financial information?
- What facts support the contractor’s belief that this information is commercial or financial in nature?
- 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)?
Prime government contractors and first-tier contractors with 50 or more employees and a contract of $50,000 or more with the federal government are required to file EEO-1 reports with the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC then has an agreement with the OFCCP to share EEO-1 reports from all companies that self-reported they were covered federal contractors. Contractors subject to the FOIA requests can be found here.
For more information, contact Claiborne Guy at claiborne.guy@agc.org or 703-837-5382.