Notice of Request Under the Freedom of Information Act for Federal Contractors' Type 2 Consolidated EEO-1 Report Data

SUPPLEMENTARY INFORMATION:

Background

A. Background on EEO-1 Reports

Multi-establishment employers must file annually a “Consolidated Report” (formerly known as a Type 2 Report) for all employees at the employer's headquarters as well as all its establishments, categorized by job category, sex, and race or ethnicity.

Since 1966, the Equal Employment Opportunity Commission (EEOC) has required eligible employers to submit workforce demographic data (EEO-1 Component 1) on an annual basis. All private employers that are covered by Title VII of the Civil Rights Act of 1964, as amended (Title VII) and that have 100 or more employees are required to file the workforce demographic data. 42 U.S.C. 2000e-8(c);29 CFR 1602.7. In addition, OFCCP's regulations require federal contractors and first-tier subcontractors that are covered by Executive Order 11246 and that have 50 or more employees to file the EEO-1 Report. 41 CFR 60-1.7(a).

The EEO-1 Report is administered as a single data collection to meet the statistical needs of both EEOC and OFCCP. OFCCP's regulations describe the EEO-1 Report as being “promulgated jointly . . . [with] the Equal Employment Opportunity Commission.” 41 CFR 60-1.7(a)(1). Employers submit their data to the EEOC. See EEOC, Agency Information Collection Activities: Existing Collection, 88 FR 27504 (May 2, 2023). OFCCP then obtains the EEO-1 data of federal contractors from the EEOC.

Section 709(e) of Title VII of the Civil Rights Act of 1964 imposes criminal penalties and makes it unlawful for any officer or employee of EEOC from making public the employment data derived from any of its data collections prior to the institution of any proceeding under EEOC's authority involving such information. 42 U.S.C. 2000e-8(e). Because OFCCP obtains EEO-1 data for contractors under its own E.O. 11246 authority, some courts have held that the Title VII prohibition against disclosure provision does not apply to OFCCP. See; Sears, Roebuck & Co. v. General Services Admin., 509 F.2d 527, 529 (D.C. Cir. 1974). Accordingly, the EEO‐1 data of federal contractors received by OFCCP are subject to the provisions of FOIA, meaning that members of the public may file FOIA requests asking OFCCP to disclose such records in its possession.

B. Legal Authorities Governing FOIA Requests for Potentially Commercial Confidential Information

Executive Order 12600 (E.O. 12600), published on June 23, 1987, established a formal process for notifying persons who submit confidential commercial information to the United States when that information becomes the subject of a FOIA request. 3 CFR 235 (1988), reprinted in5 U.S.C. 552 note (2012 & supp. V 2017). Exemption 4 to the FOIA protects against the disclosure of “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. 552(b)(4). E.O. 12600 is based on the principle that companies are entitled to notification and an opportunity to object to disclosure of this category of information before an agency makes a possible disclosure determination.

The Department's regulations implementing E.O. 12600 can be found at 29 CFR 70.26. These regulations require the agency to notify submitters of a FOIA request when it has reason to believe that the information requested may be protected from disclosure under Exemption 4 but has not yet made a determination. 29 CFR 70.26(d)(2). Further, the Department's regulations provide that when notification of a voluminous number of submitters is required, notice can be effectuated by posting and publishing it “in a place reasonably calculated to accomplish notification.” Id. at 70.26(j). Given OFCCP's best estimate that these FOIA requests cover at least 14,000 unique federal contractors, OFCCP is fulfilling its notification obligation through this Federal Register notice, a contemporaneous posting on the OFCCP website ( https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal ), and notification to all federal contractors and federal contractor representatives that have registered and provided electronic mail contact information through the agency's Contractor Portal and/or have subscribed to OFCCP's GovDelivery electronic mail listserv.

Once notified, the Department's regulations state that submitters will be provided a reasonable time to respond to the notice. Id. at 70.26(e). If a submitter has any objection to disclosure, it is “required to submit a detailed written statement as to why the information is a trade secret or commercial or financial information that is privileged or confidential.” Id. If the agency receives a timely written objection, it will give careful consideration to the objection prior to making a decision whether the requested information should be disclosed or withheld under FOIA Exemption 4. E.O. 12600, Sec. 5. If the agency determines that disclosure is appropriate notwithstanding the submitter's objection, the agency will provide the submitter written notice of the reason for the decision, and a specified disclosure date that is a reasonable time subsequent to the notice. 29 CFR 70.26(f).

Process for Submitting Objections to the FOIA Requests

Consistent with E.O. 12600 and the Department's regulations, OFCCP is hereby notifying federal contractors that submitted a Consolidated EEO-1 Report for the 2021 reporting year (hereinafter Covered Contractors) of both aforementioned FOIA requests. Covered Contractors have 40 days from the date of this Notice, or December 9, 2024, to submit to OFCCP a written objection to the disclosure of its 2021 Consolidated EEO-1 Report. Written objections must be received by OFCCP no later than this date. To facilitate this process, OFCCP has created a web form through which Covered Contractors may submit written objections, which can be found at https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal. OFCCP strongly encourages Covered Contractors that wish to submit written objections to utilize this web form to facilitate processing. If utilizing the web form is not feasible, contractors may also submit written objections via email at OFCCPSubmitterResponse@dol.gov, or by mail to the contact provided in this notice. Regardless of the delivery system used, any objections filed by Covered Contractors must include the contractor's name, address, contact information for the contractor (or its representative), and should, at minimum, address the following questions in detail so that OFCCP may evaluate the objection to determine whether the information should be withheld or disclosed pursuant to FOIA Exemption 4:

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

In the event that a Covered Contractor fails to respond to the notice within the time specified, it will be considered to have no objection to disclosure of the information. See29 CFR 70.26(e). For Covered Contractors that do submit timely objections, OFCCP will independently evaluate the objection(s) submitted consistent with the agency's regulations described herein and other relevant legal authority. If OFCCP determines to disclose the information over the objection of the Covered Contractor, OFCCP will provide written notice to the Covered Contractor of the reasons the disclosure objections were not sustained, a description of the information that will be disclosed, and a specified disclosure date that is a reasonable time subsequent to the notice. Id. at 70.26(f).

[FR Doc. 2024-24381 Filed 10-28-24; 8:45 am]

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