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OSHA may not withhold work-related injury and illness data under confidential commercial information FOIA exemption

By Robert Margolis, J.D.

DOL failed to satisfy its burden of showing that employers actually kept information confidential.

The Department of Labor must produce, in response to FOIA requests, approximately 237,000 records employers have submitted to the Occupational Safety and Health Administration (OSHA) that contain the employers’ work-related injury and illness data, a magistrate judge for the federal district court in the District of Columbia has ruled. The magistrate found that the DOL has failed to establish that the records fall within a FOIA exemption for confidential commercial information. The parties were advised that any objections to the magistrate’s Report and Recommendation must be filed within 14 days (Public Citizen Foundation v. United States Department of Labor, June 23, 2020, Harvey, G.).

Records at issue. OSHA requires employers with more than ten employees in a calendar year to maintain records of the employees’ work-related injuries and illnesses. The forms at issue in Public Citizen’s FOIA requests, are Forms 300A, the “Summary of Work-Related Injuries and Illnesses,” which employers must prepare at the end of each calendar year. The Form 300A includes information under the heading “Number of Cases,” for the total of work-related injuries, deaths, and illnesses, and related information for the year. Under the heading “Number of Days,” the employer must record the total number of days missed from work due to the work-related injuries and illnesses. Under the heading “Injury and Illness Type,” the employer must provide totals for different categories of work-related injuries and illnesses.

Finally, the Form requires the employer to provide information about its operations, including name, address, annual average number of employees, and total hours worked by all employees in the preceding calendar year. The employers must post Form 300A “in a conspicuous place where notices to employees are customarily posted,” 20 C.F.R. § 1904.32(b)(5), and remain posted for at least three months in the year after the calendar year covered by the Form, 20 C.F.R. § 1904.32(b)(6). Forms must be kept for five years, and produced on request to current and former employees, who may publicly disseminate the information, OSHA final rule “Improve Tracking of Workplace Injuries and Illnesses,” 81 Fed. Reg. at 29,684 (ITWII).

ITWII 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, 81 Fed. Reg. 29,624-25; 29 C.F.R. § 1904.41(a).

FOIA requests. Public Citizen submitted three FOIA requests to the DOL seeking all records (including Forms 300A and additional records) submitted to OSHA pursuant to ITWII between August 1, 2017, and December 18, 2017, and later added a fourth FOIA request seeking those records submitted between December 19, 2017 and January 31, 2018. The DOL denied the requests, stating that it did not have Forms 300A, but had identified 237,000 records containing Form 300A data submitted to OSHA during the period of Public Citizen’s requests.

Lawsuit. Public Citizen filed an amended complaint in federal court seeking to compel those 237,000 records of data. The parties cross-moved for summary judgment. While the motions were pending, the Supreme Court issued its decision in the case Food Marketing Institute v. Argus Leader Media, __ U.S. __, 139 S. Ct. 2356 (2019), which abrogated an earlier D.C. Circuit decision setting forth a standard for deeming records confidential that the parties had argued. Nat’l Parks and Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). After supplemental briefing on the impact of Food Marketing, the court granted Public Citizen’s summary judgment motion and denied the DOL’s.

Exemption 4. An exemption to FOIA disclosure requirements (Exemption 4) permits an agency to withhold records containing “trade secrets” or “commercial or financial information [that is] obtained from a person and [is] privileged or confidential,” 5 U.S.C. § 552(b)(4). The DOL did not contend that the records at issue contain “trade secrets,” so at issue was whether the records contain “confidential commercial information.” While DOL met the threshold requirement of showing that the records contain “commercial information,” they did not demonstrate that the information qualifies as “confidential” under Exemption 4.

Commercial information. Public Citizen argued that the Form 300A data is noncommercial because it does not serve a commercial function for the employers, nor does it shed light on the products or services they offer. But Exemption 4 is not so confined, the court noted; it extends “broadly” to information regarding any type of activity bearing on commerce. The Form 300A data easily meets that standard, the court held, since it includes information about the number of employees, the number of work hours, as well as work-related injury and illness data that reflects on productivity. The fact that employers submit the data to meet regulatory requirements, not to serve their own commercial purposes was of no moment, as Exemption 4 looks at the information, rather than the provider’s interest in gathering, processing, and reporting it.

Confidential information. In Food Marketing, the Supreme Court held that for information to be confidential under Exemption 4, it must be “customarily kept private, or at least closely held, by the person imparting it.” The Court favorably cited a standard from Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 879 (D.C. Cir. 1992), that the information must be “of a kind that would customarily not be released to the public by the person from whom it was obtained.” In asserting that the Form 300A data met that standard, the DOL relied on statements from employers and trade groups explaining why they believe the information to be confidential. But as the court explained, Food Marketing looks at whether the information is actually kept confidential, not at the beliefs of the submitter of the information. Therefore, the DOL had to establish that the employers took steps to establish and maintain confidentiality. The comments by industry insiders did not address that.

Instead, the court noted that in OSHA’s ITWII rulemaking, the agency determined that the information contained in Forms 300A is not confidential because employers do not view it as such. In addition, OSHA requires employers to post Forms 300A in “a conspicuous place” in the workplace for at least three months, and then maintain the documents for five years. If an employee or former employee requests the documents, they must be provided, and the recipient may then publicly disseminate the documents received. The court would not express the view whether in fact these points render the information public. At the very least, however, they call into question the DOL’s position, since it shows how employers actually view and treat the documents, the court held. Because it was the DOL’s burden to establish confidentiality, the court granted Public Citizen summary judgment and denied it for the DOL.