January 23, 2018
Injury and illness reports from upwards of 466,000 employers submitted to the federal government in 2017 could become public if the advocacy group Public Citizen wins a lawsuit filed Jan. 19.
Public Citizen is asking a federal judge to force the Department of Labor and the Occupational Safety and Health Administration to turn over copies of forms employers were required to file with the government.
In 2017, for the first time, OSHA required establishments with 250 or more workers and companies in high-hazard industries with 20 or more workers, to file with OSHA summaries of their injury and illness records in 2016. OSHA estimated about 466,000 sites would have to comply, however the agency hasn’t said how many employers actually filed.
The employer records, called OSHA form 300A, synopsize the number of injuries and illnesses recorded at each worksite, the number of employees, the number of hours worked, and the site’s injury and illness rates.
One of the arguments employer representatives made against OSHA enacting the rule in 2016 (81 Fed. Reg. 29,624) was the concern that even if OSHA decided not to release the documents on its own, other organizations would file Freedom of Information Act lawsuits to force their release.
Baruch Fellner, an attorney with Gibson, Dunn & Crutcher LLP, who raised employer concerns in 2014 about OSHA disclosing the records, said the agency should view the forms as confidential information.
While employers must share the forms with their workers and the government when requested, that doesn’t mean OSHA can share the information with anyone who asks, Fellner told Bloomberg Environment.
In the lawsuit—filed in the U.S. District Court for the District of Columbia—attorneys for the Public Citizen Foundation explain that the DOL turned down two Freedom of Information Act requests made to release the forms in October and November.
DOL told Public Citizen the government couldn’t release the forms under the Freedom of Information Act because the information would disclose “techniques and procedures for law enforcement investigations” or reveal “guidelines for law enforcement investigations or prosecutions,” exceptions allowed by the act, according to the lawsuit.
But, the department’s law enforcement exemption won’t stand because OSHA under the Obama administration had promised to share the data, Sean Sherman, a Washington-based attorney for the Public Citizen Foundation, which brought the suit, told Bloomberg Environment.
“It’s a total reversal of the prior position,” Sherman said.
When the Obama administration wrote the rule, OSHA officials said the employer information could be used to identify worksites with higher-than-average illness and injury rates and later inspect some of the sites. The Obama-era OSHA also said the agency would post the records on its public website, encouraging anyone to analyze the data.
OSHA had a similar inspection program—the OSHA Data Initiative—in place from 1995 to 2015. The annual effort required up to 100,000 worksites in high-hazard industries to provide their annual injury and illness summaries. About 2,000 sites would be inspected as part of the Site-Specific Targeting Program. As part of the effort, OSHA posted publicly searchable spreadsheets and databases with employers’ injury and illness rates.
The Trump administration has backed away from both public disclosure on its website and requiring employers to submit more detailed information in 2018, such as incident reports for each injury. Details of proposed changes to the rule are expected later this year (RIN:1218-AD17).
This case isn’t first time OSHA has been taken to court to release employer injury and illness data.
In a 2003 federal court case involving a Freedom of Information Act request to OSHA from The New York Times, the agency fought against releasing the same type of injury and illness data.
Court records show that the district court judge granted the newspaper’s request and ordered OSHA to provide the lost work day illness and injury rates for 13,000 workplaces. OSHA argued that the release of the data could reveal employers’ proprietary information, how many people were employed at each site, and the number of hours they worked.
The case is Public Citizen Found v DOL, D.D.C., No. 18-117, 1/19/18.