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OSHA must turn over Amazon’s Form 300As without redactions

By Kathleen Kapusta, J.D.

Not only did the DOL fail to show Amazon customarily and actually keeps the form confidential, because OSHA indicated it would disclose the forms, Amazon lost any claim of confidentiality it may have had.

In an action seeking to compel the disclosure of workplace safety documents from OSHA pursuant to the Freedom of Information Act, a federal district court in California directed the Department of Labor to provide The Center for Investigative Reporting and an individual plaintiff with Amazon’s OSHA Form 300As without redacting the data. Denying the DOL’s motion for summary judgment and granting the plaintiffs’ cross-motion, the court explained that “where, as here, a large company is required by law to post the forms for current employees and to provide the forms upon request to all current and former employees, and their representatives, with no restrictions on these individual’s further disclosure of the forms, the information is not and cannot be considered confidential under the test set forth in Food Marketing” (Center for Investigative Reporting v. U.S. Department of Labor, July 6, 2020, Kim, S.).

FOIA requests. At issue were two FOIA requests submitted in May 2019 by the plaintiffs seeking forms Amazon provided regarding its annual statistics on injuries, illnesses, and fatalities at certain Amazon facilities in Ohio and Illinois. Specifically, the plaintiffs sought Amazon’s OSHA Form 300As, which are summaries of its work-related injuries and illnesses.

DOL’s response. In response, the DOL provided the plaintiffs with nine of Amazon’s Form 300As from 2015 through 2019, some of which were unsigned and undated, and all of which were heavily redacted. While the DOL provided Amazon’s name, address, and industry description, relying on the FOIA’s Exemption 4—which shields from mandatory disclosure “commercial or financial information obtained from a person” which is “privileged or confidential”—it redacted the average number of employees, total hours worked, and all of the data on injuries and illnesses.

Amazon policy. According to Amazon, it not only considers the Form 300A to be confidential pursuant to its longstanding policy, it treats the form as confidential and stamps it as confidential. When it provides the form to current and former employees, or their authorized representatives, as required by regulation, it marks the form as confidential. Further, it posts the Form 300A in an area accessible only to employees and restricts access to its OSHA 300 logs to employees with recordkeeping responsibilities.

No deference. In addressing the plaintiffs’ motion to compel, the court first noted that a “basic policy of the FOIA is to ensure that Congress and not administrative agencies determines what information is confidential” and for this reason, “courts do not give deference to a federal agency’s determination that requested information falls under a particular FOIA exemption.”

Confidential? For purposes of Exemption 4, said the court, there was no dispute that Amazon, as the submitting company, was a person under the FOIA. Because the court found that the Form 300As are not confidential, it did not address whether they were financial or commercial or whether the DOL satisfied the foreseeable harm standard. In Food Marketing Institute v. Argus Leader Media, the court here noted, the Supreme Court explained that the term “confidential” must be given its “ordinary, contemporary, common meaning[,]” which is “private” or “secret.”

Required posting. Noting that pursuant to regulations, Amazon must post the Form 300As for three months, the court found it significant Amazon did not state that, when it posts the forms in its facilities, it cautions employees to keep the data confidential. Indeed, the court found it unclear whether, in light of the regulations, Amazon could restrict employees’ use and disclosure of these forms. While Amazon argued that it posts the forms in an area accessible only to employees, it “is a large company,” and pursuant to the regulations, “the Form 300A is accessible to a large number of people.”

Five years. In addition, the court pointed out, the regulations require Amazon to maintain the Form 300As for five years and to provide them to any current or former employee, or any employee’s representative, which the regulations broadly define. According to Amazon, when it provides employees, former employees, or their representatives Form 300As upon request, it marks it as confidential in the accompanying message.

Personal and medical information. But in its message, the court observed, Amazon groups together the Form 300 Logs with the Form 300As. While it argued that it considers both the Form 300 Logs and the Form 300As confidential because they contain personally identifiable information and personal medical information of other employees, this type of information, the court noted, is only listed on the Form 300 Logs and not on the Form 300As. “Thus, Amazon’s stated rationale for marking these documents as confidential – employee privacy – is unrelated to the data on the Form 300A. Therefore, it is not clear whether or how this message is designed to maintain the purported confidentiality of the Form 300A.”

Nor was it clear the regulations permit Amazon’s directive to its current and former employees, and their representatives, to keep the Form 300As confidential, said the court, noting that OSHA has made clear, an “employer may not require an employee . . . to agree to limit the use of the records as a condition of viewing or obtaining the records.” And while OSHA added onto the Forms 300 and 301 “a statement . . . indicating that these records contain information related to employee health and must be used in a manner that protects the confidentiality of employees to the extent possible while the information is used for occupational safety and health purposes,” employees’ personal and medical information does not appear on the Form 300As, and OSHA has not added a similar statement onto the Form 300A, the court observed.

Large group of people. Rejecting the DOL’s characterization of the required disclosure to all current and former employees and their representatives as a disclosure to a “small subset of all employees” because such individuals must affirmatively request the forms, the court pointed to a lack of evidence regarding how many Amazon employees, either current or former, have requested the Form 300As pursuant to the governing regulation. To the contrary, the court noted, Amazon is legally required to provide the Form 300As to any current or former employee, or their representative, “which is a large group of people.” In addition, Amazon must post the form at its facilities for a three-month period.

Amazon relied on Center for Auto Safety v. National Highway Traffic Safety Administration, a 2000 district court decision from the District of Columbia, for the proposition that information is confidential so long as it is only disclosed to anyone who ever works or worked for a large company, or any representative of a current of former employee. Disagreeing, the court explained that in light of the requirement to construe FOIA exemptions narrowly, “finding documents confidential even if they are available to and broadly disclosed to all current and former employees of a large company without any confidentiality or nondisclosure agreements is untenable.”

Accordingly, the court found that where “a large company is required by law to post the forms for current employees and to provide the forms upon request to all current and former employees, and their representatives, with no restrictions on these individual’s further disclosure of the forms, the information is not and cannot be considered confidential under the test set forth in Food Marketing.

OSHA disclosure. Also rejected was the DOL’s contention that Amazon had no reason to expect that OSHA would disclose its information on the Form 300As. Rather, in the preamble to its 2016 Final Rule requiring certain employers to electronically submit the illness and injury forms to OSHA on an annual basis, OSHA stated that it “intends to post the data from these submissions on a publicly accessible Web site.” Although DOL argued that since 2016, OSHA has taken the position that the Form 300As electronically submitted should be kept private, only the DOL’s public statements regarding disclosure were relevant to counter the impact of OSHA’s public statements on posting the data, the court reasoned.

And here, the first public statement the DOL pointed to was in a legal brief filed in litigation in the District Court for the District of Columbia in which the DOL clarified that it was “OSHA’s intent to release the data only when it finishes using the data to target employers for inspection – approximately four years after the year to which the data relates.” But this statement, the court pointed out, “did not publicly retract OSHA’s statement that it would publicly post the data from the Form 300As. It merely clarified the timing of when it would disclose the data.”

Not relevant. It was not until August 2019, observed the court, that OSHA publicly retracted its stated intent to publish the Form 300As when it wrote on its website: “OSHA views the 300A form data as confidential commercial information, and will not release it to the public.” This was after Amazon submitted all of the Form 300As at issue, and “OSHA’s statements made after Amazon submitted its documents are not relevant.”

Finding that “the Form 300As do not contain confidential information under Exemption 4 and cannot be withheld on that basis,” the court ordered the DOL to provide the plaintiffs with Amazon’s Form 300As without redacting the data.