Action: Banks Need Consider Recent FOIA Request and Determine Whether to Object to Disclosure of EEO-1 Report Data

Banks need be aware of a recent Freedom of Information Act (FOIA) request of the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1), filed by federal contractors from 2016-2020. OFCCP announced the request in the August 19, 2022, edition of the Federal Register. The FOIA request was made by Will Evans of the Center for Investigative Reporting (CIR). It is expected Evans seeks the information for further reporting about the racial, ethnic, and gender composition of federal contractors’ employees.

As stated in the Federal Register notice, 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 has requested that entities that filed Type 2 Consolidated EEO-1 Reports as federal contractors at any time from 2016-2020, that object to the disclosure of the information, to submit those objections to OFCCP within 30 days of the date of the notice.

Objections must be filed with OFCCP by September 19, 2022.

For banks that consider themselves to be federal contractors, WBA urges the bank to file objections to the disclosure of its EEO-1 Report data by the filing deadline. OFCCP has stated that if it does not receive a written objection by September 19, it will assume that the federal contractor has no objection to the disclosure and will begin the process of sending specific EE0-1 Report data to the FOIA requester.

Background

Will Evans of CIR submitted a FOIA request for “[a] spreadsheet of all consolidated (Type 2) EEO-1 reports for all federal contractors for 2016.” CIR subsequently amended the 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. 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 provides statutory authority for the EEO-1 Reports. The Equal Employment Opportunity Commission (EEOC) enforces the employment nondiscrimination law. See 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. See 29 CFR 1602.7. In addition, OFCCP’s regulations require federal contractors and first-tier subcontractors that are covered by Executive Order 11246 and that have 50 or more employees to file the EEO-1 Report.

Banks as Federal Contractor

Whether a bank is a federal contractor for purposes of having to file an EEO-1 Report is a determination banks have previously made with instruction from bank counsel. Therefore, each bank should already have determined whether it must file an EEO-1 Report, including whether it had filed such report in 2016-2020.

Regarding OFCCP’s interpretation of federal contractor, there are a couple of items to consider. First, OFCCP has concluded through an “FAQ” posted on its website that because deposit insurance is a federal contract, FDIC-insured banks would be considered federal contractors as the bank would accept the insurance. See FAQ #13.

Second, some banks are required to file Affirmative Action Plans via OFCCP’s Contractor Portal. It is anticipated that if a bank is registered through OFCCP’s Contractor Portal or has subscribed to OFCCP’s “GovDelivery” e-mail listserv, the bank can generally expect that OFCCP considers the bank to be a federal contractor and may disclose the bank’s EEO-1 Report data.

In response to the FOIA request, a bank, as federal contractor, need consider whether to file objections with OFCCP regarding the FOIA request for its EEO-1 Report data. OFCCP has also issued a FAQ regarding the FOIA request.

Consider Filing an Objection to the Disclosure of EEO-1 Report Data and Steps for Filing

If a bank filed any EEO-1 Report in 2016–2020, it need consider whether to file an objection with OFCCP over the release of its EE0-1 Report data. As some banks voluntarily report diversity data, the release of EEO-1 Report data may be less of a concern than for those who seek to keep diversity data nonpublic. Again, it is expected that CIR seeks the information for further reporting about the racial, ethnic, and gender composition of federal contractors’ employees.

As stated in the Federal Register notice, OFCCP acknowledges that Exemption 4 of FOIA may provide for OFCCP to withhold specific federal contractor EEO-1 Reports. However, each federal contractor must object to the release if it seeks to protect its EEO-1 Reports from being released under the FIOA request. The written objection must be received no later than September 19, 2022.

To facilitate the process, OFCCP has created a web form through which written objections may be submitted. WBA recommends the use of the specifically created web form. Written objections may also be submitted via email. Regardless of the delivery system used, any objections filed by the bank must include the bank’s name, address, and contact information for the bank.

A bank will need to answer the following six questions. With exception to question #6, WBA recommends banks filing objections to answer “yes” to each question. Banks filing an objection also need to include a description of how the release of its EEO-1 Report data would impact its recruiting efforts, employee retention, and management of its workforce. Banks also need to describe the protections it has in place for maintaining the confidentiality of the data contained in its EE0-1 Reports. Answering the questions and providing descriptions are critical for OFCCP to determine whether the information should be withheld or disclosed pursuant to FIOA Exemption 4.

1. Do you consider information in your EEO-1 report to be a trade secret or commercial information? If yes, please explain why.
2. Do you customarily keep the requested information private or closely-held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed.
3. Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to question 4.
4. If you answered “no” to question 3, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.
5. Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.
6. Are there other legal issues OFCCP should be aware of? If yes, please explain.

Summary

A recent FOIA request of OFCCP seeks data from EEO-1 Reports filed by federal contractors from 2016-2020. As a result of the request and of the type of information requested, OFCCP requested that entities (which could include banks) that filed Type 2 Consolidated EEO-1 Reports as federal contractors at any time from 2016-2020, that object to the disclosure of the information, to submit those objections to OFCCP by September 19, 2022.

OFCCP has created a web form for filing objections. If OFCCP does not receive a written objection by September 19, it will assume that the federal contractor has no objection to the disclosure and will begin the process of sending the bank’s EE0-1 Report data to the FOIA requester.

Any follow-up questions to the OFCCP notice may be posed to WBA Legal by email or by phone at 608-441-1200.