The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently issued notice that it has received two new requests from the University of Utah and a nonprofit organization named “As You Sow,” for Type 2 Consolidated Employer Information Reports from 2021 and 2022, pursuant to the Freedom of Information Act (FOIA). The requests seek all Type 2 EEO (Equal Employment Opportunity) data, including Component 1 EEO reports. The OFCCP does not have possession of the 2022 data, so only the 2021 data could be produced at this time.
The OFCCP has issued a list of contractors whose information is subject to the requests. There are exemptions to FOIA to protect trade secrets and commercial or financial information that is privileged or confidential. If a contractor objects to their information being released on the basis that it is covered under the exemption for confidential information, it can submit objections to the OFCCP through its notice response portal. The deadline for submitting objections is December 10, 2024.
According to FAQs published by the OFCCP, objections will be evaluated based on whether there is a reason for the information not to be released — that it is confidential commercial/financial or trade secret information. Aside from requiring identifying information such as company name, phone number and address, the form is on the portal and has text boxes to provide specific answers and includes the following prompts:
- Please explain the specific information from the EEO-1 report you consider to be a trade secret or commercial information.
- What facts support your belief that this information is “commercial” in nature and falls within FOIA Exemption 4?
- What facts support a belief that information is covered by the provisions of the Trade Secrets Act, or is protected from disclosure under one or more of the statutes found to qualify under exemption 3 of the FOIA?
There are also questions asking contractors to explain whether the government assured confidentiality to their information and what harm the contractor would face if the information was released.
This is not the first time similar data has been requested. Courts have evaluated contractor objections in the past, and in 2019 the United States Court of Appeals for the 9th Circuit found that EEO-1 Type 2 data is not confidential commercial or financial information and rejected arguments that such data would reveal a company’s labor strategy, demographics, or recruiting techniques. It is unclear if other courts will follow the same logic.
If a contractor is considering filing objections with the OFCCP, they should contact an attorney for advice and assistance.
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