Federal Contractors Given Opportunity to Object to Release of EEO-1 Diversity Reports Under FOIA Exemption 4

Time is up for federal contractors to object to the Center for Investigative Reporting’s (CIR) Freedom of Information Act (FOIA) request seeking the disclosure of their diversity reports.

In 2019, the CIR submitted a request to the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) seeking disclosure of certain federal contractors’ Type 2 Consolidated EEO-1 Reports. The Type 2 Report is a mandatory annual filing required of all multi-establishment federal contractors with 50 or more employees, in which they must submit demographic workforce data on all employees, categorized by race/ethnicity, sex, and job category.¹

Originally, a number of contractors and the DOL objected to public disclosure of these reports, arguing that they included confidential and proprietary information exempt from disclosure under FOIA Exemption 4. Exemption 4 shields from mandatory disclosure “commercial or financial information obtained from a person [that is] privileged or confidential.” Food Mktg. Inst. V. Argus Leader Media, 139 S. Ct. 2356, 2362 (2019) (quoting 5 U.S.C. § 552(b)(4)). The CIR sued to overrule these objections, and a federal magistrate ruled in the CIR’s favor, holding that the reports were not commercial confidential information and thus not protected under Exemption 4.

Years of back and forth between the DOL and CIR ensued following this ruling. In June 2022, CIR amended its FOIA request to request disclosure of all Type 2 reports from 2016 to 2020. Accordingly, and pursuant to federal regulations, the DOL notified the approximately 15,000 contractors subject to this request that they had until September 19, 2022 (later extended to October 19, 2022) to submit their written objection to disclosure of their diversity data. The OFCCP instructed objecting employers to assist in the evaluation of their objections by answering various questions relevant to Exemption 4 analysis, including:

• What specific information from the EEO-1 Report does the contractor consider to be a trade secret or commercial or financial information?
• What facts support the contractor’s belief that this information is commercial or financial in nature?
• Does the contractor customarily keep the requested information private?
• Does the contractor contend that the government provided an express or implied assurance of confidentiality?

Companies that did not respond to the notice were deemed to have no objection to disclosure.  

Takeaways

While the deadline has passed to object to this specific FOIA request, contractors and employers alike can glean valuable insight from this affair. 

First, companies should be aware that members of Congress, the academy, and the media are continuing to monitor large companies’ and organizations’ (especially those companies that contract with the federal government) commitment to diversity in their workplaces. Companies that are required to file EEO-1 Reports should be mindful that their diversity data may be scrutinized and even broadly shared. 

Secondly, companies should be aware of FOIA’s Exemption 4 and its protections. In the, Argus case, the Supreme Court essentially reversed course from decades of FOIA Exemption 4 case law in ruling that Exemption 4 did not require a showing that disclosure of requested information would cause “substantial competitive harm.” Instead, the Court defined “confidential” information under Exemption 4 as information that is “both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy[.]” Argus Leader, 139 S.Ct. at 2366. 

While the Court did not address what assurances of privacy are sufficient to satisfy this standard, the DOL clarified that assurances of privacy may be either “explicit or implicit.” What matters is 1) whether the information is customarily kept confidential for the producing party’s purposes, and 2) whether the information is revealed to the government under express or implied promise of confidentiality. Argus Leader, 139 S. Ct. at 2363 (quoting GSA v. Benson, 415 F. 2d 878, 881 (9th Cir. 1969).  

In sum, Exemption 4 (and the Argus ruling) is a helpful tool for contractors seeking to protect confidential information from public disclosure. For guidance on whether certain information qualifies, companies can look to the question prompts provided by the OFCCP (discussed above) to parties objecting to CIR’s FOIA Request.