OFCCP requests objections from federal contractors

On October 28, 2024, the Office of Federal Contract Compliance Programs (“OFCCP”) a notice published in the Federal Register notifying federal contractors that the agency has received two new Freedom of Information Act (“FOIA”) requests from the University of Utah and a nonprofit organization called “As You Sow” (the “Requests”).

The requests cover all Type 2 Consolidated EEO-1 reports filed by federal contractors for both the 2021 and 2022 reporting years. The requests are separate from the FOIA request filed by the Center for Investigative Reporting (“CIR”), that requested similar reports for the period 2016-2022 and for which the OFCCP invited contractors to file appeals in 2022.

OFCCP has invited contractors to object to the release of the 2021 information requested in the new requests. OFCCP does not have the requested reports for 2022 in its possession and therefore its notice does not extend to that portion of the requests. The notice provides that contractors objecting to the disclosure of their 2021 EO-1 data must submit their objections to OFCCP’s response portal for filers no later than December 9, 2024. Objectors must answer the following questions in their submissions:

1. What specific information from the 2021 EO-1 report does the contractor consider to be 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 normally keep the requested information private or secret? What steps has the contractor taken to protect the confidentiality of the requested data, and to whom has it been disclosed?

4. Does the contractor claim that the government has explicitly or implicitly guaranteed confidentiality? If not, were there explicit or implicit indications at the time the information was provided that the government would make the information public?

5. How would disclosure of this information prejudice an interest of the contractor protected by Exemption 4 (for example, by causing foreseeable harm to the contractor’s economic or business interests)?

OFCCP has provided a list of contractors subject to the new FOIA requests, which is available here. Contractors requiring additional information may contact the FOIA Help Desk at 1-800-397-6251 or [email protected].