As previously reported, the OFCCP published a notice in the Federal Register alerting federal contractor employers who file annual EEO-1 reports that, unless sufficient objection is received by the agency, the data for the consolidated, “Type 2” reports will be released to an investigative journalist in response to a Freedom of Information Act (FOIA) request.
The agency then set up an online portal for individual employers to use to submit objections and setting a deadline of Monday, September 19, 2022. According to a notice on the Department of Labor website, the deadline has now been extended to Saturday, October 19, 2022.
We note again that the information contained in the EEO-1 reports used to be considered de facto protected from disclosure under FOIA exception 4 for trade secrets and commercial or financial information. But relatively recent federal court decisions have made this a fact-specific inquiry.
In other words, a generic, blanket objection will no longer suffice. The objection must address specific factors and articulate why this data from this employer needs to be protected from disclosure. BCGi recommends that employers who wish to object do so under the guidance of qualified legal counsel. Our consultants can provide contact information for trusted firms who provide this work.
The question most often asked to BCGi is, “Do we need to object?” or, “Should we object?”
That determination depends on a number of factors specific to the employer’s particular circumstance. Some employers already publish this data, or something very close to it, on their website and have little basis to object. Others are unsure of the potential harm, while others still see clear potential harm.
So the determination as to whether or not your organization should submit an objection can’t be made here and can’t be made by us. And whether or not that objection will suffice is a matter for the OFCCP. We, nor anyone else, cannot predict that outcome.
What we can guarantee is that if your organization does not submit a timely objection, your Type-2 EEO-1 data will be released for the years 2016-2020. If you are unsure whether or not your organization has data that will potentially be affected, you can email the OFCCP at OFCCP-FOIA-EEO1-Questions@dol.gov.
BCGi has been asked whether or not the OFCCP will include company names in the data, or limit the disclosure to identification numbers. While we have so far been unable to get a direct answer to that question, we have no reason to believe that the data released will be “redacted” in any way.
Other BCGi members have expressed concern that their objection, or the fact of it, will become known and that could have negative consequences. As far as we can tell, that would require a separate FOIA request, and we cannot predict how that would be handled by the OFCCP. So it may be possible that people will learn which organizations filed an objection. It is doubtful, however, that the OFCCP would consent to disclosing the content of those objections, but at this point it is all speculation.
And that is the root of people’s fears here. We thought this data was protected, then we learned that it might not be. Then we learned that it might be disclosed to an investigative journalist who is not requesting the data for recreational purposes, and we just don’t know what might come from that. All we can do is speculate, and that can be scary.
But the time to decide and to act is upon us. Fortunately, we have an additional 30 days to try to figure it all out.
If you have questions about this or any other requirement for federal contractor employers, reach out to BCGi@Biddle.com.