That is the question to be answered by the US Court of Appeals for the Third Circuit in a pending matter brought against the federal Labor Department by a private New Jersey public records information service.OSHA recently revamped their inspection-targeting scheme to focus their energies on establishments with the highest rates of injuries. In the past, the agency would select their targets based on the Standard Industrial Classification Codes corresponding to the most hazardous industries. Under the new program, introduced as the so-called "Data Collection Initiative," companies are now required to submit their lost workday injury and illness (LWDII) rates to OSHA who then use this information to inspect the most dangerous worksites. OSHA DATA, an information service in Maplewood, NJ sought disclosure of this LWDII data under the federal Freedom of Information Act (FOIA). OSHA has vigorously fought the disclosure, claiming companies may consider it to be sensitive commercial information protected under the FOIA trade secrets exemption.
"There certainly is precedent for this sound public policy of disclosing corporate data that has impact upon the community," said Matthew Carmel, President. "For example, companies are not free to pollute the environment in private. The EPA publicly discloses corporate chemical emissions and spills though its Toxic Release Inventory. So why then should companies with unsafe workplaces, who are supported by local communities and who may be awarded publicly-funded contracts, be free to hide behind unsubstantiated claims of competitive harm if their injury rates were made public," he said.
Why the government remains so adamantly opposed to releasing corporate LWDII data is puzzling to many. "The only relevance of disclosure here would be the furtherance of OSHA's mission to promote greater safety in the workplace," said Philip Stern, a Millburn, NJ attorney representing OSHA DATA. "Identifying employers with higher injury rates could be important to the communities hosting them and it might be a factor to a potential customer of that employer. If disclosed, the incentive would be on the employer to improve workplace safety, something the Labor Department should whole-heartedly support," he said.
The Labor Department has expressed in court papers unjustified fear of Trade Secret Act or "reverse FOIA" actions brought by companies whose LWDII rates are disclosed. "Such actions can only be brought when the disclosure results in a showing or reasonable expectation of not simply competitive, but substantial competitive harm," said Stern. "No such showing or reasonable expectation has yet been made by the government," he said. Further, OSHA routinely publicizes company LWDII rates in its press releases and in Congressional testimony given by the Assistant Secretary of Labor for OSHA Charles Jeffress. "All of this disclosure by OSHA in other settings demonstrate that it holds no reasonably based belief that there is any casual link between disclosure and competitive harm," said Stern.
Copyright 2000 OSHA DATA (tm), Maplewood, NJ.
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