The Office of Federal Contract Compliance Programs announced that it has received additional requests for contractors’ EEO-1 Reports under the Freedom of Information Act. These FOIA requests seek all federal contractors’ Type 2, or consolidated, EEO-1 Reports for 2021.

We have previously reported on a similar FOIA request by Will Evans with the Center for Investigative Reporting here and here.  In response to Mr. Evans’ FOIA request, the OFCCP allowed contractors the opportunity to object to disclosure and has, thus far, declined to release the EEO-1 Reports. The U.S. District Court for the North District of California has ordered the OFCCP to produce the information, but the agency appealed, and the appellate court has yet to rule.

These two new FOIA requests were submitted by the University of Utah and As You Sow, a non-profit organization whose mission is “to promote environmental and social corporate responsibility through shareholder advocacy, coalition building, and innovative legal strategies.”

As it did in response to the prior FOIA request for EEO-1 Reports, the OFCCP is providing contractors the option to submit objections to the release of their reports. The OFCCP suggests that Type 2 EEO-1 Report information could be exempt from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information. The OFCCP has also prepared a list of contractors whose reports are subject to the FOIA request and potential disclosure.

A contractor wishing to protect its EEO-1 Reports from disclosure must file an objection with the OFCCP through the Agency’s online Submitter’s Response Form by December 9. The contractor will be required answer the following questions:

1. What specific information from the 2021 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 an interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor's economic or business interests)?

Submission of an objection will not automatically prevent disclosure of a contractor’s EEO-1 Report. The OFCCP says that it will evaluate each objection to determine whether the exemption applies and will notify those contractors whose EEO-1 Reports it deems unprotected. 

The EEO-1 Reports of contractors that do not object by December 9 will be released. 

The OFCCP says that the current FOIA requests also seek contractors’ Type 2 EEO-1 Reports for 2022, but because that data is not yet in the agency’s possession, it is not acting on that portion of the FOIA request.