The US Department of Labor's Occupational Safety and Health Administration (OSHA) has implemented a new policy of withholding disclosure of an employer's violation record for at least 30 days following an inspection, ostensibly to facilitate the completion of "critical" negotiations. It appears the real reason behind this move is to offer expunction of an employer's violation record as a bargaining chip in extracting a promise of rapid hazard abatement. This policy violates the Occupational Safety and Health Act, the Freedom of Information Act and creates wider opportunity for potential government misconduct.

Until recently, alleged violations of OSHA regulations identified by a compliance officer during a worksite inspection were immediately disclosible to public under the Freedom of Information Act. Once received, employers may challenge citations by filing a notice of contest within 15 days and seeking judicial review before the independent Occupational Safety and Health Review Commission. Employer reputations are protected by the fact that a citation remains "alleged" until it becomes a final order, just like a criminal defendant is presumed innocent throughout indictment and trial.

OSHA claims that implementation of a 30 day waiting period for release of enforcement data is needed in support of "critical" negotiations with employers. Such a policy can mean only one thing. They wish to be in a position to offer companies the opportunity to have any prior record of violative conditions completely expunged from the public record in exchange for promises of rapid hazard abatement. While at first glance this unilateral administrative policy appears to provide improved employee protection, upon careful examination it fails to do so.

First, Section 9(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 658 (a)) states:

Once a representative of the Secretary of Labor observes an apparent violation of OSHA regulations, he or she is obliged by law to report the condition. Whereas OSHA may have discretion in terms of violation classification (i.e. willful, serious, de minimus) and penalty calculation, Congress did not intend for the agency to have discretionary authority in issuance of citations for observed hazardous conditions. Like a police officer who observes a crime in progress, he or she does not have the discretion, and most certainly not as a matter of written policy, to enforce the law. A jury may fail to indict or find the defendant innocent or a judge may dismiss the case, but the police officer must make a public record of the crime. OSHA's obligation is no less.

The agency may argue, except in certain "imminent danger" situations, they cannot enforce the abatement of an alleged hazard until a contested matter is settled, often taking years. Thus they may, by believing the end justifies the means, offer employers a chance to expunge their records if they agree to fix unsafe conditions immediately. But is this approach sound? OSHA willful and repeat violations are based in part on an employer's prior OSHA violation history. Failure to record and make public a company's violation history inappropriately "resets the clock to zero" after an inspection and perpetually shields them from future willful and repeat violations. An employer can simply adopt a pattern of willfully and repeatedly violating OSHA law, pay what is generally reduced to an inconsequential penalty amount, fix only those hazards identified by the compliance officer and exit the experience with reputation intact and a clean public record.

Second, the Freedom of Information Act (5 U.S.C. Section 552), requires the government to disclose its records to the public. Victims of blacklisting, illegal wiretapping, evidence tampering, politically motivated law enforcement and other government abuses clearly understand the protection this law provides to the citizenry. The law permits only nine exemptions from mandatory disclosure of public information related to matters of 1) national defense; 2) internal agency personnel rules; 3) information prohibited from release by statute; 4) trade secrets; 5) inter or intra agency memos that would not otherwise be available in the context of litigation; 6) personnel and medical files; 7) records compiled for law enforcement purposes but only to the extent disclosure would interfere with enforcement proceedings, deprive a person of their rights, invade personal privacy, disclose the identity of a confidential source, disclose enforcement techniques which risk circumvention of the law, or endanger an individual's life or safety; 8) information from an agency responsible for regulation or supervision of financial institutions; and finally 9) geological or geophysical information. OSHA's 30-day exclusionary policy meets none of the exemptions identified above and violates both the letter and intent of the regulation.

Beyond the obvious violations of two Federal laws, the 30-day exclusionary policy also creates a wider opportunity for undue employer influence upon compliance officers, area directors or regional administrators. OSHA personnel are no less susceptible to temptation than any other human being. Bribery or acceptance of gifts is not unknown within government. An effective deterrent to this type of behavior is avoidance of potentially compromising situations in conjunction with effective supervision. A compliance officer in the field may risk overlooking an observed hazard in exchange for certain considerations, in spite of the fact that his or her direct supervisor may conduct an unannounced quality control inspection. But once the violation is recorded in the case file, entered into OSHA's computerized record keeping system, or even discussed with supervisory personnel, subsequent removal of the violation would require nothing less than a conspiracy, a highly unlikely scenario. The 30-day exclusionary policy weakens these checks and balances by administratively permitting legitimately gathered violation records to be completely and permanently removed from public disclosure. Under these conditions, not only compliance officers, but now also upstream managers have the possible means, motive and opportunity to engage in nefarious activities that otherwise would have been difficult. This wider potential for government misconduct cannot possibly be worth the risk taken to achieve what is falsely believed to be improved worker protection.

Copyright 1997 OSHA DATA (tm), Maplewood, NJ.

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