[Federal Register Volume 87, Number 160 (Friday, August 19, 2022)]
[Notices]
[Pages 51145-51147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17882]


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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 a request under the Freedom of 
Information Act (FOIA) from Will Evans of the Center for Investigative 
Reporting (CIR) for all Type 2 Consolidated Employer Information 
Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors 
from 2016-2020. 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 at 
any time from 2016-2020, and object to the disclosure of this 
information, submit those objections to OFCCP within 30 days of the 
date of this Notice.

DATES: Written objections to the FOIA request discussed herein are due 
September 19, 2022.

FOR FURTHER INFORMATION CONTACT: Candice Spalding, Deputy Director, 
Division of Management and Administrative Programs, Office of Federal 
Contract Compliance Programs, 200 Constitution Avenue NW, Room C-3325, 
Washington, DC 20210. Telephone: 1-855-680-0971 (voice) or 1-877 -889-
5627 (TTY).

SUPPLEMENTARY INFORMATION: 

Background

A. Background on the CIR FOIA Request and EEO-1 Reports

    The FOIA request precipitating this Notice originated in January 
2019, when Will Evans of CIR submitted a request for ``[a] spreadsheet 
of all consolidated (Type 2) EEO-1 reports for all federal contractors 
for 2016.'' CIR subsequently amended this request multiple times, most 
recently on June 2, 2022, to include Type 2 EEO-1 reports for all 
federal contractors, including first-tier subcontractors, from 2016-
2020 (hereinafter ``Covered Contractors''). The Type 2 EEO-1 report is 
one of several different types of reports that multi-establishment 
employers must file annually, which consists of a consolidated report 
of demographic data for all employees at headquarters as well as all 
establishments, categorized by race/ethnicity, sex, and job category.
    Title VII of the Civil Rights Act of 1964 provides statutory 
authority for the EEO-1 Reports. The Equal Employment Opportunity 
Commission (EEOC) enforces this employment nondiscrimination law. 42 
U.S.C. 2000e-8(c). The EEOC's regulations require employers with 100 or 
more employees to file the EEO-1 Report with the EEOC. 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 agencies [EEOC and OFCCP].'' See 
EEOC, Agency Information Collection Activities: Revision of the 
Employer Information Report (EEO-1) and Comment Request, 81 FR 5113, 
5114 (Feb. 1, 2016) (hereinafter First PRA Comment Request). 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); see also EEO-1 Joint Reporting Committee, EEO-1 Instruction 
Booklet 1, https://www.eeoc.gov/employers/eeo1survey/upload/instructions_form.pdf (describing the EEO-1 Report as ``jointly 
developed by the EEOC and OFCCP''). The EEO-1 Report is administered by 
the EEO-1 Joint Reporting Committee (JRC), which is composed of the 
EEOC and OFCCP and housed at the EEOC. EEOC, Agency Information 
Collection Activities: Notice of Submission for OMB Review, Final 
Comment Request: Revision of the Employer Information Report (EEO-1), 
81 FR 45479, 45481 (July 14, 2016); First PRA Comment Request, 81 FR at 
5113-14. Although the EEOC and OFCCP jointly collect the EEO-1 data 
through the JRC, as a practical matter, because the JRC is housed at 
the EEOC, employers submit their data to the EEOC.\2\ See First

[[Page 51146]]

Comment Request, 81 FR at 5118. After the JRC at the EEOC has collected 
and reconciled the EEO-1 data, the JRC provides the EEO-1 data of 
federal contractors to OFCCP.
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    \2\ The EEOC maintains a web-based portal for employers' 
submission of the EEO-1 Report at https://www.eeoc.gov/employers/eeo1survey/index.cfm. At present, employers submit their Component 1 
data through the existing EEOC portal but submit their Component 2 
data through a separate filing system at https://eeoccomp2.norc.org/.
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    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 
compliance surveys prior to the institution of any proceeding under 
EEOC's authority involving such information. However, this Title VII 
prohibition against disclosure applies by its terms only to officers 
and employees of EEOC, and reviewing courts have held that the 
provision does not apply to OFCCP. See 42 U.S.C. 2000e-8(e); 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 the CIR FOIA request covers approximately 15,000 unique Covered 
Contractors, OFCCP is fulfilling its notification obligation through 
this Federal Register notice, a contemporaneous posting on the OFCCP 
website [INSERT LINK], 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. Exec. Order No. 
12,600, 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).
    Two recent court decisions may be helpful for Covered Contractors 
to consider in determining whether information may be withheld under 
Exemption 4. In Food Marketing Institute v. Argus Leader Media, 139 
S.Ct. 2356 (2019), the Supreme Court addressed the meaning of the word 
``confidential'' in the context of FOIA Exemption 4. The Supreme Court 
held that the term ``confidential,'' which is undefined in the FOIA 
statute, should follow the term's ``ordinary, contemporary, common 
meaning'' at the time Congress enacted FOIA in 1966. The Court went on 
to state that ``[t]he term `confidential' meant then, as it does now, 
`private' or `secret.' '' Id. at 2363. Following the Court's decision, 
the U.S. Department of Justice issued step-by-step guidance for Federal 
agencies to determine whether commercial or financial information 
provided by a person is ``confidential'' under Exemption 4. U.S. 
Department of Justice, Step-By-Step Guide for Determining if Commercial 
or Financial Information Obtained from a Person is Confidential Under 
Exemption 4 of the FOIA, last updated Oct. 7, 2019 (available at 
https://www.justice.gov/oip/step-step-guide-determining-if-commercial-or-financial-information-obtained-person-confidential).
    The other relevant court decision arose in the course of previous 
litigation between the Department and CIR. In Center for Investigative 
Reporting v. U.S. Dep't of Labor, 424 F. Supp. 3d 771 (N.D. Cal. 2019), 
the district court addressed whether Type 2 Consolidated EEO-1 Reports 
of 10 federal contractors could be withheld under FOIA Exemption 4. 
After reviewing the evidence before it, including an extended 
discussion of declarations from several of the objecting submitters, 
many of which the court described as ``conclusory'' and containing 
``verbatim rationale,'' the district court held that the evidence did 
not support a finding that the EEO-1 reports were commercial, and thus 
the 10 Type 2 EEO-1 Reports at issue could not be withheld under FOIA 
Exemption 4. Id. at 778-79.\3\
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    \3\ Following the district court's decision, one of the 
submitters attempted to intervene in the matter and appeal the 
decision to the Court of Appeals for the Ninth Circuit. However, the 
Ninth Circuit explicitly did not reach the merits of the district 
court decision regarding FOIA Exemption 4, ultimately dismissing the 
appeal because the attempted intervenor ``did not file a timely 
notice of appeal of the judgment in favor of CIR'' and thus 
concluding that ``[w]e therefore lack jurisdiction to hear the 
merits of that appeal.'' Evans v. Synopsis, 34 F.4th 762 (9th Cir. 
2022). Accordingly, the district court decision remains the only 
case explicitly addressing the ``commerciality'' of EEO-1 Report 
data.
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Process for Submitting Objections to the CIR FOIA Request

    Consistent with Executive Order 12600 and the Department's 
regulations, OFCCP is hereby notifying Covered Contractors of the CIR 
FOIA request. Covered Contractors have 30 days from the date of this 
Notice, or September 19, 2022, to submit to OFCCP a written objection 
to the disclosure of its Type 2 EEO-1 data. 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. 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 contractor's name, address, contact

[[Page 51147]]

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:
    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)?
    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).

Jenny R. Yang,
Director, Office of Federal Contract Compliance Programs.
[FR Doc. 2022-17882 Filed 8-18-22; 8:45 am]
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