Federal contractors have until March 17 to object to their diversity data being disclosed by the Labor Department as part of an open-records request process that has now taken over six months and has been riddled with delays and errors.
The DOL’s Office of Federal Contract Compliance Programs has struggled to produce an accurate list of contractors who don’t object to their workforce diversity data being disclosed in response to a massive Freedom of Information Act request from a journalism nonprofit.
The small subagency that enforces antidiscrimination laws and standards on companies that do business with the government has released lists of non-objectors that contained errors and has rolled over the deadline to object several times. Information from companies that don’t object—such as
The government requires any federal contractor with 50 or more workers to fill out an annual EEO-1 report, which includes information on the race, ethnicity, and gender of employees. But that information is typically under seal.
EEO-1 forms show a company’s demographic data broken down by job category. The data would be a window into how federal contractors—including some of the nation’s largest companies—fare in hiring and promoting women and minorities.
It’s good that the agency is taking its time to get the list right, even if it takes longer, said Craig Leen, who led the OFCCP during the Trump administration. OFCCP could face reverse FOIA lawsuits from contractors if it makes a mistake on the list of EEO-1 forms it releases.
“Once this deadline is passed that information will be released and there’s nothing you can do to shut that box,” Leen, now a partner at K&L Gates, said by telephone.
OFCCP is responding to a FOIA request from the Center for Investigative Reporting for all Type 2 EEO-1 data from 2016 to 2020. The agency says it is required to give each of the tens of thousands of federal contractors during that period a chance to object to their information being released. Doing so has proved to be a gargantuan task for the roughly 600-person agency.
Small Agency, Big Task
The OFCCP first invited companies to object to the release of their EEO-1 forms in an August Federal Register notice. The agency released a list of non-objecting companies on Feb. 2, in what was supposed to be a last chance for contractors to object. That list erroneously included companies that had objected or weren’t even federal contractors during the covered period.
The agency has extended its deadline and updated the list twice since then. The issue even caught the attention of House Education and the Workforce Committee Chair
Unlike other federal agencies, OFCCP isn’t used to processing a high volume of FOIA requests. Most of the paperwork OFCCP collects is audit materials not subject to FOIA, therefore the agency doesn’t have the infrastructure to handle large requests like these, said Lauren B. Hicks, an attorney at Ogletree Deakins and a former OFCCP staffer.
“The stakes are high of making an error here when they’re juggling this much data,” she said.
The CIR sued the agency in November over its handling of the FOIA request. OFCCP’s FOIA team has added two staff members with “database and data analytic training” from DOL’s Branch of Expert Services and Department of Programs Operations to process the request, according to a March 2 case management brief in that litigation.
An agency spokesperson said that “OFCCP has committed significant resources and additional hours to implement a process to review a large amount of material and satisfy the legal requirements of responding to the FOIA request as expeditiously as possible.”
OFCCP has taken the stance that EEO-1 forms may be subject to Exemption 4 of FOIA, which protects commercial information that if divulged, could put a company at a competitive disadvantage. CIR disagrees, citing a district court decision that forced the OFCCP to produce EEO-1 forms in a previous, narrower FOIA request.
The agency likely will first tackle objections from companies that claim they weren’t federal contractors during the period covered by the requests, then hear out other objectors. In the case management brief, the OFCCP said it expects those to be completed by September of this year.
OFCCP will likely be sympathetic to objections that build their case around Exemption 4, attorneys said. The fact that the information being released encompasses several years could help companies make their case that the data reveals protected commercial information like hiring trends or priorities, said Mickey Silberman, an attorney who represents federal contractors in OFCCP matters.
“We’re not at the hard part yet,” Silberman said. “We are at what should’ve been the easy part for the OFCCP which is just sorting and listing employers by an in-or-out category.”
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