As first reported by the law firm of Fortney Scott, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) will publish a notice in tomorrow’s Federal Register informing the world that the agency is struggling with a request to release the EEO-1 reports filed by federal contractor employers for the years 2016-2020.
The OFCCP is seeking input from federal contractor employers as to whether or not the EEO-1 reports in question are protected from disclosure under one of the exceptions enumerated in the Freedom of Information Act (FOIA), specifically Exception 4 protecting confidential commercial information. Contractors will have just 30 days from the publication of the notice to file written objections.
Who is Making the Request?
The Center for Investigative Reporting (CIR) was the first nonprofit news organization in the United States focused on investigative reporting. Founded in 1977 and headquartered in the Oakland, California area, CIR has since grown into a multi-platform newsroom with a website, radio show, podcast, and video pieces on social media platforms.
CIR’s reporting has won several awards and has often spurred action in Congress. Their first independent TV documentary, Global Dumping Ground, about the U.S. practice of exporting toxic waste to (use either Third World countries or third-world countries) spurred a Congressional investigation. CIR investigations into wiretapping and data mining also resulted in Congressional hearings. Their investigations often focus on the “dark side” of the things, people, and institutions that people tend to take for granted.
This is the organization that has now submitted a FOIA request for the release of EEO-1 reports filed specifically by federal contractor employers. So it is safe to assume that the information has been requested in the course of some investigative journalism project. Whether or not that project is merely a fishing expedition or something more remains to be seen.
What Are They Requesting?
The request is specifically for the “Type 2 consolidated” reports filed from 2016-2020. This is the report that shows the demographic makeup of an entire multi-establishment organization. The request appears to exclude single-establishment federal contractor employers who do not file Type 2 reports. And it does not appear to include “Component 2” compensation data collected for fiscal years 2017 and 2018.
What Do We Need to Do?
The federal government is warning you that they are about to hand over 5 years’ worth of EEO-1 reports to a noted investigative journalism organization. If you do not want that to happen, you have until Sunday, September 18, 2022, to submit written objections. Since the deadline falls on the weekend, however, we recommend filing submissions no later than the previous Friday, September 16.
The OFCCP is encouraging contractors to submit their written objections using an online form created for that purpose. Contractors can also submit objections via email to OFCCP SubmitterResponse@dol.gov, or mail them to the address and contact provided in the notice.
The OFCCP is specifically concerned with two recent federal court cases that have changed the contours of our traditional understanding of FOIA’s Exception 4. One of those cases involved CIR itself:
CIR sued the Department of Labor in the Northern District of California over the Type 2 consolidated EEO-1 reports of 10 particular federal contractor employers. In 2019, after reviewing objections the court described the arguments as “conclusory” and containing “verbatim rationale,” and held that the evidence did not support withholding the documents from CIR.
In other words, copied-and-pasted boilerplate objection language isn’t going to cut the mustard.
If your organization chooses to file an objection, we recommend that you work with your legal staff. And if the lawyers are not familiar with Center for Investigative Reporting v. U.S. Department of Labor, 424 F. Supp. 3d 771 (N.D. Cal. 2019) and Food Marketing Institute v. Argus Leader Media, 139 S.Ct. 2356 (2019), then either they need to get up to speed or you need to find lawyers who are. Biddle has relationships with qualified attorneys who have had success defending against FOIA requests based on Exception 4 since those two cases were decided. Biddle clients should contact their consultant. Everyone else is encouraged to reach out to us at staff@biddle.com.
