Notice2022-17882
Notice of Request Under the Freedom of Information Act for Federal Contractors' Type 2 Consolidated EEO-1 Report Data
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 19, 2022
Issuing agencies
Labor DepartmentFederal Contract Compliance Programs Office
Abstract
The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has received a request under the Freedom of Information Act (FOIA) from Will Evans of the Center for Investigative Reporting (CIR) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors from 2016-2020. OFCCP has reason to believe that 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 is requesting that entities that filed Type 2 Consolidated EEO-1 Reports as federal contractors at any time from 2016-2020, and object to the disclosure of this information, submit those objections to OFCCP within 30 days of the date of this Notice.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 160 (Friday, August 19, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 160 (Friday, August 19, 2022)]
[Notices]
[Pages 51145-51147]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-17882]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
Notice of Request Under the Freedom of Information Act for
Federal Contractors' Type 2 Consolidated EEO-1 Report Data
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Labor's Office of Federal Contract
Compliance Programs (OFCCP) has received a request under the Freedom of
Information Act (FOIA) from Will Evans of the Center for Investigative
Reporting (CIR) for all Type 2 Consolidated Employer Information
Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors
from 2016-2020. OFCCP has reason to believe that 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 is requesting that entities
that filed Type 2 Consolidated EEO-1 Reports as federal contractors at
any time from 2016-2020, and object to the disclosure of this
information, submit those objections to OFCCP within 30 days of the
date of this Notice.
DATES: Written objections to the FOIA request discussed herein are due
September 19, 2022.
FOR FURTHER INFORMATION CONTACT: Candice Spalding, Deputy Director,
Division of Management and Administrative Programs, Office of Federal
Contract Compliance Programs, 200 Constitution Avenue NW, Room C-3325,
Washington, DC 20210. Telephone: 1-855-680-0971 (voice) or 1-877 -889-
5627 (TTY).
SUPPLEMENTARY INFORMATION:
Background
A. Background on the CIR FOIA Request and EEO-1 Reports
The FOIA request precipitating this Notice originated in January
2019, when Will Evans of CIR submitted a request for ``[a] spreadsheet
of all consolidated (Type 2) EEO-1 reports for all federal contractors
for 2016.'' CIR subsequently amended this request multiple times, most
recently on June 2, 2022, to include Type 2 EEO-1 reports for all
federal contractors, including first-tier subcontractors, from 2016-
2020 (hereinafter ``Covered Contractors''). The Type 2 EEO-1 report is
one of several different types of reports that multi-establishment
employers must file annually, which consists of a consolidated report
of demographic data for all employees at headquarters as well as all
establishments, categorized by race/ethnicity, sex, and job category.
Title VII of the Civil Rights Act of 1964 provides statutory
authority for the EEO-1 Reports. The Equal Employment Opportunity
Commission (EEOC) enforces this employment nondiscrimination law. 42
U.S.C. 2000e-8(c). The EEOC's regulations require employers with 100 or
more employees to file the EEO-1 Report with the EEOC. 29 CFR 1602.7.
In addition, OFCCP's regulations require federal contractors \1\ 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).
---------------------------------------------------------------------------
\1\ Hereinafter, all references to ``contractors'' or ``federal
contractors'' includes first-tier subcontractors as well, unless
specified otherwise.
---------------------------------------------------------------------------
The EEO-1 Report ``is administered as a single data collection to
meet the statistical needs of both agencies [EEOC and OFCCP].'' See
EEOC, Agency Information Collection Activities: Revision of the
Employer Information Report (EEO-1) and Comment Request, 81 FR 5113,
5114 (Feb. 1, 2016) (hereinafter First PRA Comment Request). 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); see also EEO-1 Joint Reporting Committee, EEO-1 Instruction
Booklet 1, <a href="https://www.eeoc.gov/employers/eeo1survey/upload/instructions_form.pdf">https://www.eeoc.gov/employers/eeo1survey/upload/instructions_form.pdf</a> (describing the EEO-1 Report as ``jointly
developed by the EEOC and OFCCP''). The EEO-1 Report is administered by
the EEO-1 Joint Reporting Committee (JRC), which is composed of the
EEOC and OFCCP and housed at the EEOC. EEOC, Agency Information
Collection Activities: Notice of Submission for OMB Review, Final
Comment Request: Revision of the Employer Information Report (EEO-1),
81 FR 45479, 45481 (July 14, 2016); First PRA Comment Request, 81 FR at
5113-14. Although the EEOC and OFCCP jointly collect the EEO-1 data
through the JRC, as a practical matter, because the JRC is housed at
the EEOC, employers submit their data to the EEOC.\2\ See First
[[Page 51146]]
Comment Request, 81 FR at 5118. After the JRC at the EEOC has collected
and reconciled the EEO-1 data, the JRC provides the EEO-1 data of
federal contractors to OFCCP.
---------------------------------------------------------------------------
\2\ The EEOC maintains a web-based portal for employers'
submission of the EEO-1 Report at <a href="https://www.eeoc.gov/employers/eeo1survey/index.cfm">https://www.eeoc.gov/employers/eeo1survey/index.cfm</a>. At present, employers submit their Component 1
data through the existing EEOC portal but submit their Component 2
data through a separate filing system at <a href="https://eeoccomp2.norc.org/">https://eeoccomp2.norc.org/</a>.
---------------------------------------------------------------------------
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
compliance surveys prior to the institution of any proceeding under
EEOC's authority involving such information. However, this Title VII
prohibition against disclosure applies by its terms only to officers
and employees of EEOC, and reviewing courts have held that the
provision does not apply to OFCCP. See 42 U.S.C. 2000e-8(e); Sears,
Roebuck & Co. v. General Services Admin., 509 F.2d 527, 529 (D.C. Cir.
1974). Accordingly, the EEO[hyphen]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 in 5 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 the CIR FOIA request covers approximately 15,000 unique Covered
Contractors, OFCCP is fulfilling its notification obligation through
this Federal Register notice, a contemporaneous posting on the OFCCP
website [INSERT LINK], 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. Exec. Order No.
12,600, 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).
Two recent court decisions may be helpful for Covered Contractors
to consider in determining whether information may be withheld under
Exemption 4. In Food Marketing Institute v. Argus Leader Media, 139
S.Ct. 2356 (2019), the Supreme Court addressed the meaning of the word
``confidential'' in the context of FOIA Exemption 4. The Supreme Court
held that the term ``confidential,'' which is undefined in the FOIA
statute, should follow the term's ``ordinary, contemporary, common
meaning'' at the time Congress enacted FOIA in 1966. The Court went on
to state that ``[t]he term `confidential' meant then, as it does now,
`private' or `secret.' '' Id. at 2363. Following the Court's decision,
the U.S. Department of Justice issued step-by-step guidance for Federal
agencies to determine whether commercial or financial information
provided by a person is ``confidential'' under Exemption 4. U.S.
Department of Justice, Step-By-Step Guide for Determining if Commercial
or Financial Information Obtained from a Person is Confidential Under
Exemption 4 of the FOIA, last updated Oct. 7, 2019 (available at
<a href="https://www.justice.gov/oip/step-step-guide-determining-if-commercial-or-financial-information-obtained-person-confidential">https://www.justice.gov/oip/step-step-guide-determining-if-commercial-or-financial-information-obtained-person-confidential</a>).
The other relevant court decision arose in the course of previous
litigation between the Department and CIR. In Center for Investigative
Reporting v. U.S. Dep't of Labor, 424 F. Supp. 3d 771 (N.D. Cal. 2019),
the district court addressed whether Type 2 Consolidated EEO-1 Reports
of 10 federal contractors could be withheld under FOIA Exemption 4.
After reviewing the evidence before it, including an extended
discussion of declarations from several of the objecting submitters,
many of which the court described as ``conclusory'' and containing
``verbatim rationale,'' the district court held that the evidence did
not support a finding that the EEO-1 reports were commercial, and thus
the 10 Type 2 EEO-1 Reports at issue could not be withheld under FOIA
Exemption 4. Id. at 778-79.\3\
---------------------------------------------------------------------------
\3\ Following the district court's decision, one of the
submitters attempted to intervene in the matter and appeal the
decision to the Court of Appeals for the Ninth Circuit. However, the
Ninth Circuit explicitly did not reach the merits of the district
court decision regarding FOIA Exemption 4, ultimately dismissing the
appeal because the attempted intervenor ``did not file a timely
notice of appeal of the judgment in favor of CIR'' and thus
concluding that ``[w]e therefore lack jurisdiction to hear the
merits of that appeal.'' Evans v. Synopsis, 34 F.4th 762 (9th Cir.
2022). Accordingly, the district court decision remains the only
case explicitly addressing the ``commerciality'' of EEO-1 Report
data.
---------------------------------------------------------------------------
Process for Submitting Objections to the CIR FOIA Request
Consistent with Executive Order 12600 and the Department's
regulations, OFCCP is hereby notifying Covered Contractors of the CIR
FOIA request. Covered Contractors have 30 days from the date of this
Notice, or September 19, 2022, to submit to OFCCP a written objection
to the disclosure of its Type 2 EEO-1 data. 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 <a href="https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal">https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal</a>. OFCCP strongly
encourages Covered Contractors that wish to submit written objections
to utilize this web form to facilitate processing. Contractors may also
submit written objections via email at <a href="/cdn-cgi/l/email-protection#c28d8481819291b7a0afabb6b6a7b090a7b1b2adacb1a782a6adaeeca5adb4"><span class="__cf_email__" data-cfemail="f1beb7b2b2a1a284939c9885859483a39482819e9f8294b1959e9ddf969e87">[email protected]</span></a>,
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
[[Page 51147]]
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 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. See 29 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).
Jenny R. Yang,
Director, Office of Federal Contract Compliance Programs.
[FR Doc. 2022-17882 Filed 8-18-22; 8:45 am]
BILLING CODE 4510-CM-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on August 19, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.