"Freedom of Information Usurped" A Potential News Story and Request for Amicus Briefs
OSHA DATA/CIH, Inc. vs. US DOL Civil Action No. 98-283 (AJL) US District Court, District of New Jersey Filed January 22, 1998
OSHA DATA/CIH, Inc. vs. US DOL Civil Action No. 98-4689 (SMO) US District Court, District of New Jersey Filed May 12, 1998

Summary

OSHA DATA, a small New Jersey information service, has filed two FOIA lawsuits against the Labor Department seeking continued, new and timely release of OSHA enforcement, employer violation and workplace injury records. The decision to withhold this information has broad public policy implications related to workplace health and safety. Assistance is requested from interested parties by publicizing the case particulars in the press and submission of amicus briefs in support of the litigation.

OSHA contends that release of certain mandatory employer-provided information such as the number of employee hours worked and lost workday injury and illness (LWDII) rate, may cause competitive harm and may therefore be exempt from disclosure under FOIA. This position is taken even though the information may be derived or taken directly from the employer's log of injuries and illness, a form that OSHA has required employers to publicly post in the workplace since the early 1970's. OSHA has demanded payment of $1.6 million before they will start a review of the issue.

Significance: Injury and illness statistics are a direct measure of an employer's safety performance. Many state and local governments have adopted prequalification criterion that debars contractors with poor safety records. Non-disclosure of a company's injury rate frustrates both the expansion of this sound public policy and the Congressionally mandated purpose of OSHA to assure safe and healthful working conditions for our citizens. Furthermore, it undercuts the Labor Department's own much publicized "No Sweat" initiative whose goal is to reduce the prevalence of labor law violations within the garment and other industries. OSHA has arbitrarily and capriciously reversed a long-standing pattern and practice of immediate disclosure of an employer's violation record by withholding the information for at least 30 days. They have claimed the right to delay disclosure even longer. Significance: This action frustrates the prequalification and "No Sweat" initiatives described above by permitting unsafe employers to remain hidden. Also, delayed release of OSHA enforcement data gives the government an opportunity to expunge employers' citations before the data ever becomes public. The government could then offer to sanitize an employer's violation record quid pro quo thus coercing hazard abatement actions that would otherwise not be required unless formally adopted through the Administrative Procedures Act. OSHA has abandoned its practice of disclosing the Compliance Safety and Health Officer identification number (CSHO ID). Significance: Failure to disclose the CSHO ID halts an employer's former ability to assess equal treatment under the law by evaluating individual compliance officer enforcement actions. OSHA has abandoned its practice of disclosing the lost workday injury (LWDI) rate calculated by the compliance officer during onsite inspection and the inspected establishment's number of employees. It alleges the LWDI rate and number of employees can be used to determine production rates, market share and hours worked. Yet OSHA has released this information for years and even published it on their Internet website until recently removed as a defensive tactic in direct response to this pending litigation. Their characterization of the customarily disclosed employment counts as sensitive commercial information, a statistic that is voluntarily released to credit reporting agencies such as Dun & Bradstreet, defies common sense. Significance: OSHA's actions are contrary to its mission and belie a bad faith attitude towards the public's right to know. If left unchallenged, the logical extension of the government's position would be to class all enforcement data as sensitive commercial information. Reversing the policy of publicly disclosing a company's OSHA violation history would remove one of most effective deterrents against unsafe working conditions. Such a circumstance should lend little comfort to responsible management or labor representatives. Assistance is requested from interested and potentially affected parties in the form of publicizing the case details. Also, legal counsel are invited to apply to the court for permission to submit amicus briefs. Letters should be addressed to: Honorable Alfred J. Lechner
Unites States District Judge
United States District Court, District of New Jersey
50 Walnut Street, Room 2060
Newark, New Jersey 07101
Honorable Joel B. Rosen
Unites States Magistrate Judge
Mitchell H. Cohen US Courthouse
1 John F. Gerry Plaza, Room 2060
Camden, New Jersey 08101 The following are case file documents posted in Adobe Acrobat file format (.pdf). Case 1
Complaint with Amendments (201 KB) (Case1doc1.pdf)
Memorandum in Support of Defendant's Motion for a Stay (357 KB) (Case1doc2.pdf)
Brief of Plaintiff in Opposition to Application for Stay (436 KB) (Case1doc3.pdf)
Brief in Support of Plaintiff's Motion for Summary Judgment (341 KB) (Case1doc4.pdf)
Defendant's Brief in Reply to Plaintiff's Opposition to Application for Stay (848 KB) (Case1doc5.pdf)
Brief of Defendant in Opposition to Plantiff's Motion for Summary Judgment and In Support of its Cross-Motion to Dismiss Count Three for Lack of Jurisdiction (511 KB) (Case1doc6.pdf)
Brief of Plaintiff (I) In Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment and (II) In Opposition to Cross-Motion for Dismissal of the Third Count (390 KB) (Case1doc7.pdf)
Opinion (263 KB) (Case1doc8.pdf)
Notice of Appeal and Objections to Report Pursuant to L.CIV.R. 72.1(c) and Statement That No Brief is Necessary (129 KB) (Case1doc9.pdf)
Letter Opinion (753 KB) (Case1doc10.pdf)
Notice of Appeal (23 KB) (Case1doc11.pdf)
Concise Summary of the Case (82 KB) (Case1doc12.pdf)
Brief of Appellant (84 KB) (Case1doc13.pdf)
Brief for the Appellee (1458 KB) (Case1doc14.pdf)
Reply Brief for the Appellant (50 KB) (Case1doc15.pdf)
Motion to Expand Record (139 KB) (Case1doc16.pdf)
Judgment (792 KB) (Case1doc17.pdf)

Case 2
Complaint (114 KB) (Case2doc1.pdf)
Brief of Plaintiff in Support of Motion for Summary Judgment (291 KB) (Case2doc2.pdf)
Defendent's Brief in Opposition to Plaintiff's Motion and in Support of its Cross Motion (720 KB) (Case2doc3.pdf)
Defendent's Brief in Support of its Motion for Summary Judgment (1382 KB) (Case2doc4.pdf)
Brief of Plaintiff in Support of Cross Motion for Summary Judgment and in Opposition to Defendent's Motion for Summary Judgment (90 KB) (Case2doc5.pdf)
Defendant's Brief in Further Support of its Motion for Summary Judgment and in Opposition to Plaintiff's Cross Motion for Summary Judgment (1036 KB) (Case2doc6.pdf)
Plaintiff's Letter Brief (22 KB) (Case2doc7.pdf)

Further information and copies of other case file correspondence may be obtained by contacting Matthew Carmel, President, OSHA DATA at (973) 378-8011.

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