4A02 Confidentiality

Some of the data examined during a CMCE, such as human resource development plans and total compensation packages for higher management levels, may be considered particularly sensitive by the contractor. COs must consult with the appropriate OFCCP managing officials to ensure that the appropriate steps are taken to ensure confidentiality of these data. In many cases, this will include consultation with the District Director.

If the contractor’s representatives express concerns about confidentiality, the CO must advise the representative that OFCCP is required to “treat information obtained in the compliance evaluation as confidential to the maximum extent the information is exempt from public disclosure under the FOIA, 5 U.S.C. 552.”267 Exemption 4 of the FOIA at 5 U.S.C. 552 (b)(4) protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” DOL’s FOIA regulations require OFCCP to notify the contractor of a FOIA request for confidential business information to give the contractor an opportunity to object to the disclosure under exemption 4.268 When submitting data and records to OFCCP, contractors should clearly identify all trade secrets and commercial or financial information it believes are exempt from disclosure. Moreover, the CO may advise the contractor that, under the Trade Secrets Act, 18 U.S.C. 1905, it is a criminal offense for a government employee to release trade secrets and other forms of confidential commercial and financial information to another business or to the public unless the law authorizes such disclosure.

Other information may be exempt from disclosure, e.g., personnel files under Exemption 6 of the FOIA.269 For additional information regarding the agency’s treatment of confidential information, review 41 CFR 60-1.20(f) and 41 CFR 60-1.20(g).

267. 41 CFR 60-1.20(g).

268. 29 CFR 70.26.

269. 29 CFR Part 70.