The Office of Federal Contract Compliance Programs (OFCCP) is currently evaluating responses from contractors regarding a Freedom of Information Act (FOIA) request from the Center of Investigative Reporting.
In response to the FOIA request from the Center for Investigative Reporting (“CIR”) for Type 2 EEO-1 data for all federal contractors during the 2016-2020 EEO-1 reporting years, OFCCP provided federal contractors with multiple notices and opportunities to object to the release of this data. The EEO-1 data of contractors that have not objected will be released to CIR and published on our website in the FOIA library. For contractors that have objected to the release, OFCCP is evaluating the contents of each objection submitted to determine releasability. Determinations will be made on a case-by-case basis.
Due to the number of objections received and complexity of the evaluation process, we are unable to give specifics as to when contractors will receive a response to their objection. However, OFCCP intends to provide responses to objections on a rolling basis through the end of September.
Contractors that objected on the basis that they were not federal contractors during the 2016-2020 reporting year will receive a response from OFCCP verifying their contractor status. Contractors confirmed to be federal contractors will be given an additional opportunity to object to the release of their entities’ data. For those found not to be federal contractors during the specified reporting period, no further action is needed.
Once the evaluation of all objections has been concluded, OFCCP anticipates a supplemental release of EEO-1 data of contractors whose objection did not support the assertion of an exemption. These objecting contractors will be notified of OFCCP’s determination in advance of any disclosure of information. OFCCP will also provide CIR a response that includes a list of contractors whose EEO-1 reports were found to be exempt from disclosure.
If you have any questions about this information or questions that have not been covered in our FAQs, please contact us at via email at OFCCP-FOIA-EEO1-Questions@dol.gov.
Additional Information: Notice of Litigation
In April 2023, a court order in the matter of Center for Investigative Reporting v. U.S. Department of Labor, 3:22-cv-07182-WHA (N.D. Cal.), directed DOL to file a motion for summary judgment based on six “bellwether” objecting contractors to determine whether the requested Type 2 EEO-1 diversity reports are exempt from disclosure under FOIA Exemption 4. Following briefing on the motions, the district court ruled on December 22, 2023, that DOL had not demonstrated “the inherently commercial nature of the diversity data” and therefore the EEO-1 reports could not be considered “commercial information” under FOIA Exemption 4. The Court also ruled that “there is no commercial gain to be found in the head count or demographic data within the EEO-1 report” and therefore there could be “no compounded effect by releasing five years’ worth of data to plaintiffs.” The court did not reach the Exemption 4 confidentiality question because both the commerciality and confidentiality prongs must be met to support withholding the reports under Exemption 4.
OFCCP was ordered to produce the remaining EEO-1 reports at issue within 28 days of the date of the order. On December 28, 2023, the court granted a stipulation to extend the deadline for release of the EEO-1 reports at issue to February 20, 2024. On February 15, 2024, the Department of Labor filed an emergency motion to stay the deadline for production of the responsive data pending appeal. Production is temporarily stayed by the U.S. District Court for the Northern District of California pending a response by Plaintiffs to the Department’s motion. Plaintiffs' response is due at noon PST on February 23, 2024. An order will likely be issued by the court based on the briefing to resolve the matter.
Background
In 2019, the Center for Investigative Reporting submitted a FOIA request for Type 2 Consolidated EEO-1 Report data for federal contractors and first-tier subcontractors. In June 2022, the FOIA request was amended to include all such data submitted by contractors and first-tier subcontractors from reporting years 2016 until 2020. Consistent with the U.S. Department of Labor’s disclosure regulations at 29 CFR 70.26(j), OFCCP provided notice to contractors covered by this FOIA request through a published Notice in the Federal Register, individual correspondence sent by e-mail and U.S. mail to federal contractors for whom OFCCP has contact information, and this website, which is no longer open for objection.
Use of Response Data Collected
The responses collected will be evaluated to determine whether the requested information includes confidential trade secret, commercial, or financial information that should be withheld pursuant to FOIA Exemption 4.
Frequently Asked Questions
Visit the OFCCP's Submitter Notice Response Portal frequently asked questions (FAQs).
Contact the OFCCP National FOIA Office
Please note that our business hours are from 9:00 a.m. to 5:00 p.m., Monday through Friday.
You may contact us at the information below:
National FOIA Office
Office of Federal Contract Compliance Programs
U.S. Department of Labor
Helpdesk Number: 1-800-397-6251
Email: OFCCP-FOIA-EEO1-Questions@dol.gov