- What is the Freedom of Information Act (FOIA)?
- Who submitted this FOIA request?
- What is the scope of the request?
- How do contractors find out whether their company filed a Type 2 EEO-1 Report for 2021?
- If a company was only a federal contractor for part of the time from 2021, is its EEO-1 data included in this request?
- What is FOIA Exemption 4?
- Where can contractors find the Federal Register Notice that OFCCP published?
- When is the deadline to submit objections?
- What happens if contractors do not submit a written objection?
- What information should contractors include in a written objection if their company decides to file one?
- If a company does not have any objection to the release of the requested data, what should it do?
- If a contractor submits a written objection, how can it confirm that OFCCP has received it?
- What will OFCCP do with the written objection once it receives it?
- If a contractor submits a written objection and OFCCP, after its review, determines that the company’s EEO-1 Report Type 2 data can be withheld from disclosure, what happens then?
- If a contractor submits a written objection and OFCCP, after its review, determines that the EEO-1 Report Type 2 data must be disclosed, what happens then?
- Does OFFCP have a position on whether the requested data should be disclosed or withheld?
- How long after the contractors submit their response will they be notified of the determination?
- If contractors have additional questions, how can they contact OFCCP to ask these questions?
- If the contractor wants to submit a written objection but cannot or does not want to email it, how else can they submit a written objection?
1. What is the Freedom of Information Act (FOIA)?
The Freedom of Information Act (FOIA) provides that any person has the right to request access to federal agency records or information. Like all federal agencies, the U.S. Department of Labor (DOL) is required to disclose records requested in writing by any person. However, agencies may withhold information pursuant to nine exemptions and three exclusions contained in the statute. FOIA applies only to federal agencies and does not create a right of access to records held by Congress, the courts, or by state or local government agencies. Read more about FOIA at https://www.foia.gov/about.html.
2. Who submitted this FOIA request?
OFCCP has received two requests under the Freedom of Information Act (FOIA) for 2021 and 2022 Type 2 Consolidated Employer Information Reports filed by the federal contractors. These two requests have come from the University of Utah and a non-profit organization named “As You Sow,” respectively. The broader of these two requests, which establishes the scope of the Notice, seeks Type 2 Consolidated EEO-1 Report data of all federal contractors that filed Type 2 reports for the years 2021 and 2022. Please note that OFCCP currently only has the EEO-1 data for reporting year 2021 in its possession, this request is limited to that dataset.
3. What is the scope of the request?
The request seeks all Type 2 Consolidated EEO-1 Report demographic data (i.e., “Component 1” EEO-1 Reports) submitted by federal contractors and first-tier subcontractors for reporting year 2021. The Type 2 Consolidated EEO-1 Report is one of several different types of reports that are filed by entities with multiple establishments. EEO-1 reports filed by single-establishment contractors (Type 1) and other EEO-1 reports filed by multi-establishment contractors (Types 3, 4, 6, and 8) are not covered by the request. EEO-1 reports containing compensation information (i.e., “Component 2” EEO-1 reports), which were collected by the EEOC, are also not covered by the request. Furthermore, Type 2 data only applies to multijurisdictional establishments and not to contractors with only one establishment. Contractors that only have one establishment are not subject to this request.
For more information on the EEO-1 Report, please refer to our EEO-1 FAQ: https://www.dol.gov/agencies/ofccp/faqs/eeo1-report.
For more information on the EEO-1 Report, please refer to our https://www.dol.gov/agencies/ofccp/faqs/eeo1-report.
4. How do contractors find out whether their company filed a Type 2 EEO-1 Report for 2021?
Many companies should have internal records of their EEO-1 filings that they can use to determine if they filed Type 2 reports during the relevant time period. However, if a company has filed EEO-1 Reports in the past, the EEO-1 Component 1 Reports from 2021 is available in the EEO-1 Online Filing System. From the Company Dashboard, click on Historic Data (Prior EEO-1 Reports) to download prior year reports. As a last resort, companies may also email OFCCP at OFCCP-FOIA-EEO1-Questions@dol.gov to determine whether their data will be released under this FOIA request.
5. If a company was only a federal contractor for part of the time from 2021, is its EEO-1 data included in this request?
Any Type 2 EEO-1 Report filed for 2021 indicating that a company was a federal contractor is included in the request.
6. What is FOIA Exemption 4?
The Freedom of Information Act (FOIA) is a statute that provides the public the right to request access to records from any federal agency. FOIA also contains some “exemptions” under which agencies may redact, or withhold entirely, certain information that is requested. FOIA Exemption 4 protects from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. § 552(b)(4).
7. Where can contractors find the Federal Register Notice that OFCCP published?
The Federal Register Notice can be found here.
8. When is the deadline to submit objections?
The deadline to submit written objections is December 10, 2024.
9. What happens if contractors do not submit a written objection?
If OFCCP does not receive a written objection, the agency will assume that the company has no objection to disclosure and will begin the process of sending the contractor’s Type 2 EEO-1 Report data to the FOIA requester.
10. What information should contractors include in a written objection if their company decides to file one?
Contractors should include the first and last name of their company’s point of contact (POC), the POC’s phone number and email address, the company’s name and address and the parent company’s EEO-1 unit number.
Contractors should also provide as much information as possible addressing why they believe their Type 2 EEO-1 Report data should not be released under FOIA, including whether the information is commercial/financial and confidential. At a minimum, OFCCP suggests that written objections address the following questions:
- Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.
- Do you customarily keep the requested information private or closely held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed?
- Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to the next question.
- If you answered “no” to the previous question, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.
- Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.
11. If a company does not have any objection to the release of the requested data, what should it do?
If a company does not have any objections to the release of its data, it does not have to submit a written objection. OFCCP will release the company’s data to the FOIA requester (CIR) as part of a rolling production after the period of time for submitting written objections has expired ( December 10, 2024).
12. If a contractor submits a written objection, how can it confirm that OFCCP has received it?
If a contractor submits a written objection to the email or OFCCP mailing address provided, it will receive a response via email or mail acknowledging receipt. If responding via the Submitters Response Portal, notify OFCCP via email and we will confirm receipt.
13. What will OFCCP do with the written objection once it receives it?
OFCCP will independently evaluate the objection(s) submitted and make a determination as to whether the information can be properly withheld under FOIA Exemption 4 based on the information provided in the written objection.
14. If a contractor submits a written objection and OFCCP, after its review, determines that the company’s EEO-1 Report Type 2 data can be withheld from disclosure, what happens then?
OFCCP will notify the company and the FOIA requester of our determination to withhold the data.
15. If a contractor submits a written objection and OFCCP, after its review, determines that the EEO-1 Report Type 2 data must be disclosed, what happens then?
OFCCP will provide written notice to the 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 after the contractor receives notice of OFCCP’s determination.
16. Does OFFCP have a position on whether the requested data should be disclosed or withheld?
OFCCP believes the information requested may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, but has not yet determined whether the requested information is protected from disclosure under that exemption. OFCCP will make a determination about whether a particular contractor’s Type 2 EEO-1 data can be withheld under Exemption 4 after evaluating the written objection submitted by that contractor.
17. How long after the contractors submit their response will they be notified of the determination?
We cannot give an exact time by when OFCCP will make its determination before we know how many objections we will receive. We intend to issue responses as soon as practicable.
18. If contractors have additional questions, how can they contact OFCCP to ask these questions?
The best method of contact for specific questions is by emailing us at OFCCP-FOIA-EEO1-Questions@dol.gov. They may also contact our Help Desk number at 1-800-937-6251.
19. If the contractor wants to submit a written objection but cannot or does not want to email it, how else can they submit a written objection?
Given the volume of responses OFCCP expects to receive, we strongly encourage contractors to email their responses to the agency. However, if this method of submission is not possible, contractors may also submit written objections via mail at the following information:
ATTN: FOIA Officer (FRN)
Office of Federal Contract Compliance Programs
Division of Management and Administrative Programs
200 Constitution Avenue, N.W., Suite C3325
Washington, D.C. 20210
Please note that responses by mail must be received by OFCCP no later than December 10, 2024.