Notice of Request Under the Freedom of Information Act for Federal Contractors' Type 2 Consolidated EEO-1 Report Data, 85986-85988 [2024-24381]

Agencies

• DEPARTMENT OF LABOR
• Office of Federal Contract Compliance Programs

[Federal Register Volume 89, Number 209 (Tuesday, October 29, 2024)]
[Notices]
[Pages 85986-85988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24381]


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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.

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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

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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).
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    \1\ Hereinafter, all references to ``contractors'' or ``federal 
contractors'' includes first-tier subcontractors as well, unless 
specified otherwise.
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    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 (https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal), 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 https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal. 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 
[email protected], 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:
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    \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.
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    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