OFCCP Invites Federal Contractors to Object to Production of their “Type 2 EEO-1 Reports” in Response to New FOIA Request

On October 29, 2024, the Office of Federal Contract Compliance Programs (“OFCCP”) published a notice in the Federal Register that it received two requests under the Freedom of Information Act (“FOIA”) for 2021 Type 2 EEO-1 Reports filed by federal contractors.  The two requests came from the University of Utah and a non-profit organization named “As You Sow.”  The OFCCP notified federal contractors that the information might be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, and requested that any entities that filed these reports and object to their disclosure submit objections by December 9, 2024.  Objectors are strongly encouraged to use the OFCCP portal.  Alternatively, contractors may also submit written objections via email at OFCCPSubmitterResponse@dol.gov, or by mail. 

Note that this FOIA request is separate from the one issued by the Center for Investigative Reporting, which seeks Type 2 EEO-1 Reports for the years 2016–2020.  OFCCP provided a similar notice to contractors at that time, to which many responded with objections.  That request is also the subject of pending litigation before the Ninth Circuit Court of Appeals.  In December 2023, the Northern District of California ruled that these reports were not subject to FOIA Exemption 4.  A stay of production was granted pending appeal.  Briefing in that case concluded August 30, 2024.

Against this backdrop, whether Type 2 EEO-1 Reports are protected from disclosure under FOIA Exemption 4 remains an open question.  However, contractors who wish to preserve their objections to disclosure of their 2021 EEO-1 reports must meet the OFCCP deadline, even if they objected to the request for their 2016–2020 EEO-1 reports.  Crowell & Moring is available to advise federal contractors how to proceed in light of this new request.