OFCCP Issues 30-Day FOIA Notice to Contractors and Subcontractors

On August 18, 2022, the Office of Federal Contract Compliance Programs (OFCCP) issued notice of a broad Freedom of Information Act (FOIA) request that impacts the federal contracting community. An investigative reporter requested the Type 2 Consolidated EEO-1 Report data filed by federal contractors and first-tier subcontractors from reporting years 2016 through 2020. In anticipation of a high volume of responses, OFCCP established a “Submitter Notice Response Portal” where a contractor can file an objection to the disclosure of its EEO-1 Type 2 reports. OFCCP posted guidance in the form of frequently asked questions (FAQs) indicating that this is not limited to contractor facilities that had an OFCCP compliance review, but instead includes all EEO-1 Type 2 reports filed from 2016-2020 in which a company is identified as a federal contractor.

Contractors are invited to provide an objection via the Submitter Notice Response Portal or other means based on FOIA Exemption 4, which protects from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” (Brackets in original.) Contractors will not be receiving any additional individualized notice that their documents may be amongst those to be disclosed. OFCCP stated that it must receive written objections no later than September 19, 2022. OFCCP indicated that if it does not receive an objection, the information would be released to the investigative reporter. If an objection is received, OFCCP will evaluate and the contractor will be notified regarding the final determination.

Companies can begin thinking about whether a response is warranted by considering the following questions:

• During the 2016-2020 timeframe, did the company file Type 2 Consolidated EEO-1 Report(s) that could be subject to disclosure?
• Is the company already disclosing this information publicly on a website, government filing, or other public location?
• Does the company consider this information to be privileged or confidential?

Note that the Type 2 EEO-1 Report refers to the Consolidated Component 1 EEO-1 employee demographics report, a separate report from the now-defunct EEO-1 Component 2 compensation report, which is not part of this FOIA request.

For more information on the FOIA request submitted to OFCCP seeking disclosure of Type 2 Consolidated EEO-1 Report Data, including considerations for federal contractors deciding whether to submit objections to the request through OFCCP’s Submitter Notice Response Portal, join Scott Kelly and Lauren Hicks for their podcast, “OFCCP Facing Request for EEO-1 Reports—What the Disclosure of Type 2 Consolidated Reports Could Mean for Contractors.”

Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will continue to monitor developments with respect to the FOIA guidance and will post updates on the firm’s Affirmative Action / OFCCP and Government Contractors blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.