Notice2024-24381
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
October 29, 2024
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 two requests under the Freedom of Information Act (FOIA) for 2021 Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), 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. 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 for the 2021 reporting year and object to the disclosure of this information submit those objections to OFCCP within 40 days of the date of this Notice.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 209 (Tuesday, October 29, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 209 (Tuesday, October 29, 2024)]
[Notices]
[Pages 85986-85988]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-24381]
=======================================================================
-----------------------------------------------------------------------
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 two requests under the Freedom
of Information Act (FOIA) for 2021 Type 2 Consolidated Employer
Information Reports, Standard Form 100 (EEO-1 Report), 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. 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 for
the
[[Page 85987]]
2021 reporting year and object to the disclosure of this information
submit those objections to OFCCP within 40 days of the date of this
Notice.
DATES: Written objections to the FOIA requests discussed herein are due
December 9, 2024.
FOR FURTHER INFORMATION CONTACT: Kelley Smith, Director, Division of
Management and Administrative Programs, Office of Federal Contract
Compliance Programs, 200 Constitution Avenue NW, Room C-3325,
Washington, DC 20210. Telephone: 1-800-397-6251 (voice). If you are
deaf, hard of hearing, or have a speech disability, please dial 7-1-1
to access telecommunications relay services.
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 \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 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[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 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 (<a href="https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal">https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal</a>), 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.\2\ 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 <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. If utilizing the web form is not
feasible, contractors may also submit written objections via email at
<a href="/cdn-cgi/l/email-protection#81cec7c2c2d1d2f4e3ece8f5f5e4f3d3e4f2f1eeeff2e4c1e5eeedafe6eef7"><span class="__cf_email__" data-cfemail="c9868f8a8a999abcaba4a0bdbdacbb9bacbab9a6a7baac89ada6a5e7aea6bf">[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
[[Page 85988]]
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:
---------------------------------------------------------------------------
\2\ These requests also sought federal contractors' Consolidated
Report EEO-1 data for the 2022 reporting year. However, because
OFCCP currently only has the EEO-1 data for reporting year 2021 in
its possession, this Notice is limited to that dataset.
---------------------------------------------------------------------------
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. 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).
Michele Hodge,
Acting Director, Office of Federal Contract Compliance Programs.
[FR Doc. 2024-24381 Filed 10-28-24; 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 October 29, 2024.
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.