Labor & Employment Law Daily After adverse ruling, OSHA agrees to turn over injury and illness data per FOIA request
Friday, July 24, 2020

After adverse ruling, OSHA agrees to turn over injury and illness data per FOIA request

By Lisa Milam, J.D.

Per an agreed order entered by a federal court, OSHA will produce some 237,000 employer records of injury and illness data sought by Public Citizen Foundation.

The Department of Labor’s Occupational Safety and Health Administration (OSHA) will turn over in full employer injury and illness records sought by the Public Citizen Foundation, a consumer advocacy organization that litigates consumer and employee health and safety issues. After an adverse ruling by a federal magistrate judge in the District of Columbia rejecting the DOL’s bid to dodge a Freedom of Information Act (FOIA) request, the federal agency reached an agreement to produce the records requested.

In a June 23 decision, the magistrate concluded that OSHA may not withhold injury and illness data, recommending that the district court order the Department of Labor to turn over, in response to Public Citizen’s FOIA request, approximately 237,000 records submitted to OSHA. The magistrate rejected the DOL’s contention that a FOIA exemption for confidential commercial information applied, finding that the records were not confidential. As such, the agency was required to produce the documents and, rather than object, OSHA agreed to produce the records in full.

Employers submit the Form 300A (Summary of Work-Related Injuries and Illnesses) to OSHA at the end of each calendar year. It includes information about the total number of work-related injuries, deaths, and illnesses, and related information; the total number of days missed from work due to the work-related injuries and illnesses; and the total number of incidents for different categories of work-related injuries and illnesses. The Form also requires employers to provide information about their operations, including name, address, annual average number of employees, and total hours worked by all employees in the preceding calendar year.

Public Citizen initially submitted three FOIA requests for all Forms 300A (and additional records) submitted to OSHA between August 1, 2017, and December 18, 2017, pursuant to a final agency rule, “Improve Tracking of Workplace Injuries and Illnesses” (ITWII). The rule requires the annual electronic submission of Forms 300A by employers with more than 250 employees, as well as employers in certain industries with between 20 and 250 employees. Public Citizen later added a fourth FOIA request seeking records submitted between December 19, 2017, and January 31, 2018. When OSHA refused to turn over the documents, a two-year court battle ensued, culminating in a July 20 court ruling ordering OSHA to produce the data in full by August 18, 2020.

Public Citizen announced its court win in a July 22 press statement. “Workplace injury and illness data should not be hidden from public view,” said Michael Kirkpatrick, a Public Citizen attorney. “Release of Form 300A data, as required under FOIA, will have a significant impact on efforts to protect worker health and safety. The records should provide important information to help researchers identify the causes of work-related injuries and illnesses and develop solutions.”

The litigation, Public Citizen Foundation v. United States Department of Labor, was originally filed in the District of Columbia federal court in January 2018.

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