Labor & Employment Law Daily N.D. California orders OSHA to turn over injury and illness records per FOIA request
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Tuesday, June 9, 2020

N.D. California orders OSHA to turn over injury and illness records per FOIA request

By Lisa Milam, J.D.

In a dispute which has taken on added significance in light of COVID-19, the court held employers did not have an expectation their Form 300A reports would be confidential.

An investigative reporters’ organization scored a key win in the ongoing tussle over public access to employers’ workplace safety records. A federal magistrate in California held that OSHA must produce employer injury and illness logs pursuant to a Freedom of Information Act (FOIA) request, rejecting the agency’s claim that a FOIA exemption applied. The suit, filed by the Center for Investigative Reporting, precedes the coronavirus pandemic, but the litigation over access to employer Form300A report takes on added significance as employers scramble to safeguard their worksites and employees warily return to work (Center for Investigative Reporting v. Department of Labor, June 4, 2020, Ryu, D.).

Publicly accessible. OSHA Form 300A requests information from employers about the number of injury or illness-related deaths, days away from work or work restrictions, and the total number of “recordable” safety incidents at the employer’s worksite. During the Obama administration, the DOL engaged in rulemaking to require employers to submit this information electronically, and OSHA indicated that it intended to make the data publicly accessible on the DOL website.

However, the agency backed away from this plan under the Trump administration. In January 2019, OSHA released its final rule, “Tracking of Workplace Injuries and Illnesses,” which “to protect worker privacy,” according to the agency, amended the electronic recordkeeping regulation by rescinding the requirement that establishments with 250 or more employees must electronically submit information from OSHA Forms 300 and 301. These establishments are still required to maintain those records on-site, and OSHA continues to obtain them as needed through inspections and enforcement actions. Establishments also are required to continue submitting information from their Form 300A.

FOIA exemption. The Center for Investigative Reporting had filed a FOIA request for illness and injury data, and the agency argued that the Form 300A information was properly withheld under FOIA Exemption 4, which exempts from production “commercial or financial information obtained from a person and [is] privileged or confidential.” The plaintiff argued this exemption did not apply to the Form 300A data, contending the information is neither “confidential” nor “commercial” within the meaning of this provision. The court agreed, rejecting the notion that the exemption applied.

Confidential? DOL argued that the Form 300A information is “customarily and actually treated as private” by the owners of the data (employers). In support of this assertion, it cited comments from employers and trade groups during the 2014 rulemaking process, objecting to the rule because “’they consider the submitted data to be confidential commercial information’” and fearing potential harm if the information is released. However, the court said, these comments reflected employers’ subjective view, and what matters, in the test for confidentiality, is “whether the information actually is kept and treated as confidential, not whether the submitter considers it to be so.”

“The comments do not speak to how the owners keep and treat the Form 300A information; instead, they focus on the reasons why the owners oppose the release of the information,” the court added, finding the comments to be only “minimally probative.”

Data is posted at the worksite. The controlling precedent is Food Marketing Institute v. Argus Leader Media, a 2019 U.S. Supreme Court decision, which prevented the disclosure of Supplemental Nutrition Assistance Program (SNAP) data in response to a FOIA request because the evidence showed that the owners of the information “customarily do not disclose” it or “make it publicly available ‘in any way.’” In contrast here, though, OSHA regulations require companies submitting the Form 300A to make the contents available to current and former employees, posted conspicuously at the worksite. The rules also require employers to preserve their Forms for five years and disclose them to current and former employees (and their representatives) upon request. “Therefore, the Form 300A information is both readily observable by and shared with employees, who have the right to make the information public.”

Assurance of privacy. Left open in Food Marketing was the question whether, in order for information to be deemed confidential under Exemption 4, the government must have provided some assurance of privacy. To the extent such a requirement exists, DOL cannot meet it—OSHA clearly stated in its 2016 rulemaking that it intended to post the data from the electronic submission to the public website. The DOL countered that it had openly reversed its position, and since at least November of 2017 has stated its view that “the Form 300A data should be kept private.” OSHA claimed that its public turnabout occurred just as employers were due to submit their first set of electronic forms. But the timeline of events didn’t back up this assertion; rather, the agency made its first public statements about the change of policy in June 2018—six months after the first scheduled deadline for electronic submissions.

In addition, under Justice Department guidelines on Exemption 4, “information loses its character of confidentiality where there is express agency notification that submitted information will be publicly disclosed.” That means OSHA’s 2016 statement about its intent to post the information online was dispositive as to confidentiality. As the court explained, “even if DOL had established that the Form 300A information is ‘customarily and actually treated as private by its owner[s],’ the information ceased to be confidential upon submission to the government pursuant to Department of Justice guidelines.”

Adequate search. Tackling another point of contention in the dispute—the agency’s failure to produce responsive Form 300 or Form 301 records—the magistrate did find that OSHA’s search for relevant records pursuant to the FOIA request was sufficient. The agency searched the database for responsive records and did not find any Form 300 or Form 301 records; the only responsive records were the Form 300A records. And the agency’s declarations as to the process it undertook in its search satisfied the court that it met its obligations to conduct aa reasonable search.

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