The Office of Federal Contract Compliance Programs (OFCCP) recently announced it has received multiple Freedom of Information Act (FOIA) requests for the Type 2 Consolidated EEO-1 Reports of all federal contractors from 2021. Contractors must file objections either through the online portal or by sending in written objections by December 10, 2024, to protect their information from release to the public.

The FOIA Requests

The FOIA requests at issue were submitted by the University of Utah and “As You Sow,” which is a non-profit organization. Among other things, the requests seek reports for all federal contractors from 2021 and 2022, but the OFCCP says it only intends to release the 2021 reports because they are the only reports available at this time.

The OFCCP published a list of the contractors subject to these requests, which is available here: Contractor List. There are over 14,000 federal contractors at risk of having their reports released. The requested Type 2 data only applies to multi-establishment contractors; therefore, contractors with only one establishment are not subject to this request.

The OFCCP has indicated the requested reports may be protected from FOIA through Exemption 4, which protects against the disclosure of “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”

Take Action

Federal contractors have until December 10, 2024, to file objections to disclosure. Contractors may submit objections in two ways: using the online portal or sending written objections. Submission of objections does not automatically prevent disclosure; the OFCCP will evaluate each objection to determine whether the report should be withheld or disclosed pursuant to FOIA Exemption 4.

The online portal (available here: Response Portal) is the OFCCP’s preferred method, but contractors may also submit written requests by email to OFCCPSubmitterResponse@dol.gov. Written objections should contain detailed responses to the following questions:

1. What specific information from the 2021 EEO-1 Report does the contractor consider 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 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)?

The OFCCP has honored these objections in FOIA disclosures from previous years, but the Ninth Circuit has yet to rule on an order from the Northern District of California requiring the OFCCP to produce the reports of contractors who objected.