Objection! Confidential DOL Data Sought by FOIA

The U.S. Department of Labor (DOL) recently published a Notice of a Freedom of Information Act (FOIA) request seeking the disclosure of employee diversity data submitted by federal contractors. The data sought are Type 2 Consolidated EEO-1 Reports submitted between 2016 and 2020. These EEO-1 reports consist of a demographic data categorized by race/ethnicity, sex and job category, and are required to be submitted to the DOL annually by federal contractors. The Department of Labor suspects that the EEO-1 reports and information contained therein may be protected from disclosure under a FOIA exemption and is inviting objections via this Notice.

It has not yet been determined if EEO-1 reports and information are exempt from disclosure, as the matter has been contested among federal contractors, the DOL, FOIA requesters, and the courts. It is argued that FOIA Exemption 4 which protects the disclosure of confidential commercial information is the authority by which these EEO-1 reports and information are exempted.

Because whether this exemption applies has not yet been determined, the DOL is requesting that any who filed Type 2 Consolidated EEO-1 Reports as federal contractors at any time from 2016-2020, and object to the disclosure of these EEO-1 Reports or information, submit those objections by October 19, 2022. The original notice required objections by September 19 but was extended to October 19 to accommodate numerous contractors who requested an extension, and to clarify for some federal contractors whether they’re covered by this request.

Financial institutions that do not consider themselves to be federal contractors need not object to this Notice, but those that consider themselves to be federal contractors who choose to object should do so by October 19, 2022.

This notice suggests the DOL may choose to disclose the EEO-1 reports of any federal contractors who submitted EEO-1 reports 2016-2020 and do not object to their disclosure by October 19, 2022. Objections may be submitted online through the DOL’s Submitter Notice Response Portal, via email to [email protected] or by mail.

Questions posed by the Department of Labor in the Notice to be considered:

  1. What specific information from the 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)?