UPDATE: Sept. 19, 2022: The Office of Federal Contract Compliance Programs has announced an extension to the deadline for objections to the FOIA request for federal contractors' Type 2 Consolidated EEO-1 report data. The new deadline is Oct. 19, 2022.
Federal contractors that would object to the public release of Type 2 Consolidated EEO-1 reports filed between 2016 and 2020 will have 30 days to submit comments to the Office of Federal Contract Compliance Programs, the agency said in a notice released Thursday.
The agency said the notice, scheduled to be published in The Federal Register on Friday, is in response to a Freedom of Information Act request seeking a spreadsheet of all consolidated Type 2 EEO-1 reports for all federal contractors, including “first-tier subcontractors,” from 2016 to 2020.
The Type 2 report is one of several EEO-1 reports that organizations may be required to file annually with the federal government. Specifically, Type 2 reports are filed by multiestablishment employers, and the reports must include data for all employees of the organization — including those who work at the organization’s headquarters and at all other establishments — categorized by race, ethnicity, sex and job category.
OFCCP opened a webpage for contractors to submit written objections and relevant information. The site includes a deadline of 5 p.m. on Sept. 19, 2022, for all comments.
EEO-1 data sought in the FOIA request “may be protected from disclosure” under FOIA guidelines, which exempt “‘trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential,’” according to the U.S. Department of Justice. But OFCCP added that it had not yet determined whether the requested information fell under this exemption.
H. Juanita Beecher, counsel at Fortney & Scott, said in an interview with HR Dive that there is an “inclination,” based on the notice, that OFCCP may not want to release the EEO-1 data in question. “But they can only do that for contractors that actually filed with them within the [30-day period],” Beecher said. “If federal contractors do not object, then their data will be released by OFCCP.”
The FOIA request is part of ongoing litigation between the Center for Investigative Reporting, the media organization that submitted the request, and OFCCP. CIR previously sued the U.S. Department of Labor in 2019 after OFCCP informed CIR that it would withhold data for certain contractors that objected to the release of EEO-1 Type 2 data.
DOL filed a motion for summary judgment, but a federal judge denied this motion and instead granted summary judgment in favor of CIR, holding that the government was not justified in applying FOIA’s exemption to EEO-1 reports. The judge also ordered DOL to produce the withheld reports without redaction.
But employers seeking to prevent EEO-1 data from being released may find it difficult to argue that it should fall under FOIA’s exemptions for trade secrets, particularly if they have previously published EEO-1 information voluntarily, Beecher said. She said that affected contractors should read the notice and determine whether they want to file an objection “as soon as possible,” noting that “OFCCP is making this about as easy as it ever has been.”