On Thursday, September 15, 2022, the Office of Federal Contract Compliance Programs (OFCCP) announced that covered contractors now have until October 19, 2022 to submit objections to the disclosure their EEO-1 data. The original deadline for objections was September 19, 2022.

The potential disclosure stems from a request from Will Evans of the Center for Investigative Reporting under the Freedom of Information Act (FOIA) for Type 2 EEO-1 data filed by federal contractors and first-tier subcontractors for the five-year period from 2016 through 2020.

In addition to extending the deadline to submit an objection, OFCCP said it would be notifying contractors it believes are covered by the FOIA request via the email address provided in the OFCCP Contractor Portal as a contact for the EEO-1 report.

According to a notice published on the Federal Register on August 19, 2022, “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.” Therefore, OFCCP is requesting covered contractors that object to the disclosure of their Type 2 EEO-1 data submit their objections in writing so it can determine whether the information should be withheld or disclosed.

Covered contractors may submit their written objections the following ways:

• OFCCP’s web form at: https://www.dol.gov/​agencies/​ofccp/​submitter-notice-response-portal (strongly encouraged);
• Email to: OFCCPSubmitterResponse@dol.gov;
• Mail to: Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW, Room C-3325, Washington, DC 20210

Objections should include the contractor’s name, address, contact information for the contractor (or its representative), and the following:

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)?

The OFCCP will evaluate objections and notify the covered contractor if it decides to disclose the requested information over the contractor’s objection. Covered contractors what do not submit timely objections will be considered by the OFCCP to have no objection to the disclosure of the requested information.

Covered contractors are encouraged to seek legal counsel as to whether they should submit an objection, and for assistance drafting the objection.