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Freedom of Information Act (FOIA) Frequently Asked Questions

 

1. Why is OFCCP providing FAQs on this topic?

OFCCP is committed to full compliance with the Freedom of Information Act (FOIA), including its exemptions. OFCCP is well aware that it possesses sensitive and confidential information from contractors, including confidential commercial and proprietary information that could be protected from disclosure by Exemption 4. OFCCP recognizes the importance of protecting such confidential commercial and proprietary information where permitted and is committed to doing so in accordance with applicable law. OFCCP is issuing these FAQs to make its process for considering requests to protect information under Exemption 4, and the information needed from contractors as part of that process, as transparent as possible. OFCCP believes it would be instructive to do so in the context of EEO‐1 data, which can include such information and may be subject to protection under Exemption 4 under appropriate circumstances.

2. What are EEO‐1 Report data?

The EEO‐1 Report is a compliance survey mandated by federal statute and regulations. The survey requires company employment data to be categorized by race/ethnicity, gender and job category.1

3. Are EEO‐1 data protected from public disclosure?

EEOC is prohibited by federal statute2 from making public the employment data derived from any of its compliance surveys unless a Title VII charge has been filed. However, courts have ruled that the Title VII prohibition against disclosure does not apply to OFCCP’s collection of EEO‐1 data because such data is collected under the authority of Executive Order 11246.3 Unlike Title VII, Executive Order 11246 has no language specifically prohibiting the disclosure of EEO‐1 information, but other protections from disclosure may apply.

4. Are EEO‐1 data received by OFCCP subject to the provisions of the Freedom of Information Act (FOIA)?

Yes. The EEO‐1 data received by OFCCP are subject to the provisions of FOIA, meaning that members of the public may file a FOIA request asking OFCCP to disclose information in its possession. However, some companies consider their EEO‐1 data as confidential commercial or financial information – and that data may be protected under FOIA Exemption 4. To balance the rights of the FOIA requestors and the rights of the companies, OFCCP complies with the Executive Order (EO) 12600 process, allowing the companies an opportunity to raise objections to the release of information pursuant to Exemption 4, to determine whether it must release EEO‐1 data and related information in response to FOIA requests.

5. What is FOIA Exemption 4?

FOIA Exemption 4 allows the United States to withhold from disclosure trade secrets and commercial or financial information obtained from a person that is privileged or confidential. 5 U.S.C. § 552(b)(4). The intent of this exemption is to protect the interests of the United States and the submitters of information. The exemption also protects the submitters who furnish commercial or financial information to the United States by safeguarding them from the competitive disadvantages that could result from disclosure. For additional information, please see the Department of Justice’s FOIA Guide, Exemption 4 at https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/exemption4_0.pdf.

6. How does OFCCP determine to release or withhold EEO-1 data?

OFCCP engages in a case specific analysis when determining whether or not to release information that a company asserts is protected by Exemption 4 of the FOIA. Executive Order (EO) 12600,4 as implemented by the Department of Labor through 29 C.F.R. § 70.26, creates the process OFCCP follows to determine when EEO‐1 data is released or withheld in response to a FOIA request.

OFCCP recognizes the importance of protecting confidential commercial and proprietary information of contractors where permitted and is committed to doing so in accordance with applicable law. OFCCP is committed to making its process for considering requests to protect information under Exemption 4, and the information needed from contractors as part of that process, as transparent as possible.

7. What is the EO 12600 process?

EO 12600 established a formal, procedural structure for notifying persons who submit "confidential commercial information" to the United States when that information becomes the subject of a FOIA request. That term is defined in EO 12600 as "records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the [FOIA], because disclosure could reasonably be expected to cause substantial competitive harm." EO 12600 is based on the principle that companies are entitled to such notification and an opportunity to object to disclosure before an agency makes a possible disclosure determination.

The EO 12600 process begins with a certified notification to the business. OFCCP grants the company 30 calendar days from the date of receipt of the notification to agree to the release of the EEO‐1 data or to object. If a company objects to the release of the data, OFCCP responds confirming or rejecting the company’s request after conducting an analysis (or requesting an independent review) on a case by case basis. If the company does not respond, OFCCP sends a second notification advising the company that the agency will release the EEO‐1 data in 30 calendar days from the date of receipt of the second notification. OFCCP releases the data if the company does not respond to the second notification.

8. Has OFCCP changed its policy with regard to the processing of FOIA requests for EEO‐1 information?

No. As mentioned earlier, OFCCP continues to follow the procedures and standards required by Executive Order 12600, its regulations, and FOIA, including engaging in a case specific analysis when determining whether or not to release information that a company asserts is protected by Exemption 4 of the FOIA.




1 https://www.eeoc.gov/employers/eeo1survey/faq.cfm

2Section 709(e) of Title VII of the Civil Rights Act of 1964, as amended.

3See, e.g., Sears Roebuck & Co. v. Gen. Servs. Admin., 509 F.2d 527, 529 (D.C. Cir. 1974)..

4https://www.archives.gov/federal-register/codification/executive-order/12600.html