The Charleston Gazette’s Ken Ward posted two items yesterday at Sustained Outrage: a Gazette Watchdog Blog concerning records related to the August 2008 explosion at the Bayer CropScience plant in Institute, WV that killed two workers (previous posts here, here, here, here), and OSHA’s and CSB’s reticence in making certain records available to the public.
In OSHA Secrecy? Ward describes his attempt to obtain a copy of Bayer CropScience “notice of content.” This is the official communication sent to OSHA by the company indicating that they are challenging the OSHA citations. The company received 13 serious and 2 repeat violations with penalties totalling $143,000. Ward writes:
“But the usually helpful OSHA regional spokeswoman, Leni Uddyback-Fortson, wouldn’t give it to me. She said OSHA policy was such documents were part of their ‘investigation file’ and not released to the public or the press.”
“OK, I said, what exemption to the federal Freedom of Information Act allows you to keep that notice from the public? Leni kicked me upstairs to Diana Peterson, a top OSHA public affairs person in Washington, D.C.”
“… ‘I’m unable to give you a response today,’ Peterson said. ‘I still have other people I need to talk with.'”
If OSHA has a policy of not releasing these documents, shouldn’t the agency’s lawyers have figured out a long time ago what FOIA exemption they believe allows such a policy?
It makes me eager for the day when DOL officials take to heart President Obama’s FOIA principle: in the face of doubt, openness prevails. It’s interesting to me that on the exact day that Ward was trying to obtain this record from OSHA, Attorney General Eric Holder issued a memorandum on FOIA, calling for more openness. (More here from the reporters committee on freedom of the press.) I especially love AG Holder’s instruction to agencies to:
“readily and systematically post information online in advance of any public request,”
meaning in practicular terms: if OSHA and MSHA suspect that certain records are likely to be of interest to the public, they should get them up on their websites. There’s no need for them to wait for someone to file a FOIA request. Just get the records up on their website and direct inquirers to the site.
In Ward’s second post Chemical Safety Board Secrecy? he points us to reporting by Jeff Johnson of Chemical & Engineering News on negotiations between the CSB, Department of Homeland Security (DHS) and Bayer CropScience to determine which information will be disclosed at an upcoming public meeting in Institute, WV. Johnson’s article quotes CSB Chairman John Bresland:
“’We are confident we can work this out with DHS, but we want to be transparent to the public about what we can and can’t show.” Hence, he says, if DHS objects to information in the slides, CSB will black out parts of the actual slides used at the meeting.”
This round of secrecy started when Bayer CropScience objected to the CSB’s plan for a public meeting in the community of Institute, WV. A likely subject at the event would be the siting of methyl isocyanate tanks on the plant property. Some were as close as 50 feet from the explosion site. Bayer CropScience lawyers offered an obscure maritime law to make their case that such information should not be disclosed.
From the info provided by Chemical & Engineering News’ Jeff Johnson and reported by Ward in Chemical Safety Board Secrecy?, it sounds like the CSB is maneuvering to fulfill its responsibility while encountering obstacles erected by the company and DHS:
“On March 13, Bayer attorneys requested that CSB allow them to examine some 48 documents the company submitted to CSB to see whether the material should be restricted. The board won’t comply, Bresland says.”
“’Our main judge on sensitive security information will be DHS. And our main mission is to do good independent investigations. It will be difficult for us to do so if someone is always looking over our shoulder and telling us what we can and can’t say in our reports.’”
“…pleased to know that the CSB has rescheduled the meeting and look forward to expressing our comments in hopes of informing the remainder of the investigation.'”
The CSB’s public meeting will take place the evening of April 23 on the Institute, WV campus of West Virginia State University.