Finkel Wins FOIA Case for OSHA Data

At first, the FOIA request for workplace inspection data seemed straight forward.  The requester asked for all records contained in OSHA's database of industrial hygiene samples for the contaminant beryllium during the period 1979 to 2005.   Previously, OSHA had provided on numerous ocassions comparable information to other requesters, and in some cases, even without requiring a formal FOIA request.  Moreover, OSHA's sister agency, MSHA, already provides full access to this kind of data right on its website. 

But in this case, the requester was Adam M. Finkel, ScD CIH, a former OSHA regional administrator.  He was not just any former employee.  In 2003, Finkel won a whistleblower case against the agency after OSHA's Assistant Secretary John Henshaw tried to fire him after complaining about the agency's refusal to offer medical tests to inspectors who had been potentially exposed to beryllium while conducting inspections. 

Now, after a two-year legal battle over Finkel's FOIA request, a federal judge ruled that OSHA had not made case for withholding the data.

When Adam Finkel filed his original request with OSHA in June 2005, he explained the public benefit of releasing the data, noting his desire:

"to conduct statistical analyses of trends in beryllium concentrations by time period, geographic region...and to estimate the exposure potential of the OSHA compliance officer workforce."

He followed-up with a second FOIA request, asking for all air sampling records (not just for beryllium) contained in OSHA's database going back until June 1979.   When OSHA failed to supply the requested records, he appealed to the Solicitor of Labor, but the Department continued to insist that the bulk of the data was exempt from disclosure.  OSHA went so far as publishing a notice in the Federal Register in April 2006, asking if any companies objected to releasing the information.  OSHA planted the notion that

"...public release, in a form that identifies specific employers or workplaces, of sampling data that indicates chemical identities and the use or presence of particular chemicals or substances, would disclose confidential commercial or trade secret information."

The attorney assisting Finkel later described how:

"OSHA went further, in what can only be an astonishing demonstration of hostility to Dr. Finkel's request, and actually trolled among trade groups for comments objecting to the request.  By letter date April 21, 2006, OSHA wrote to an unknown number of trade associations and specifically noted that 'there is reason to believe that the release of this data could include the confidential commercial or trade secret information that has not been previously disclosed to the public.'"

Finkel's attorney added:

"This is not the action of a neutral agency acting to carry out the law, but an agency intent on building a record that would justify its preordained decision to frustrate a former senior official against whom it has a demonstrated record of animus."

In response to its Federal Register notice, OSHA received 21 letters in response to its solitications, 19 of which were submitted by trade associations or individual employers.   The majority of them urged OSHA to withhold the records, including comments such as:

• American Foundry Society, Inc.: "the release of all of OSHA's sampling records could have a devastating commercial impact on AFS members, in part because of trade secret information contained therein, but primarily because of the exposure to massive litigation costs.  ...The most compelling commercial concern for the foundry industry and for many other businesses is the predictable use of sampling data by plaintiff's attorneys to solicit alleged victims for lawsuits.  ...Release of OSHA's air sampling data will likely open the door to a whole new round of litigation targets." (AFS's letter here)
• National Association of Manufacturers: "This is a huge volume of information that aggressive and inventive trial lawyers, with the benefit of 20/20 hindsight, could attempt to use in new lawsuits.  We can expect efforts to solicit alleged victims for class action lawsuits, with allegations that try to avoid the limits under the workers' compensation system, or alleging premises liability to other second-hand exposures." (NAM's letter here)
• US Chamber of Commerce: "...granting this FOIA request would violate the employers' intention to protect confidential business information that is contained in the samples collected by OSHA.  Such a breach of this privilege would have a chilling effect on employers' willingness to submit such samples in the future and thereby undermine the public's interest in the collection of sample data.  Granting this FOIA request would also likely lead to more litigation where the plaintiffs do not have the adequate data to support their claim, but hope to find it using this approach.  We urge OSHA and the Department of Labor to oppose this request vigorously." (Chamber's letter here)

These are certainly some "scary" predictions about an epidemic of lawsuits, but the point of the Federal Notice was not to collect a pile of vague, conceptual objections to the Finkel FOIA request.  The purpose was to determine whether affected employers* had any ACTUAL trade secrets they wanted to protect.  On that count, the commenters provided OSHA with zilch. 

In September 2006, the Department of Labor provided some data to Adam Finkel (but not all that he requested) and claimed that the records were exempt from release under FOIA exemption 4 covering trade secrets, as well as 7(C) and 7(E) (related to law enforcement records) and 6 (related to personal privacy.) 

In one of its many strange arguments, the Department insisted that "employers voluntarily submit to OSHA inspections" and therefore don't expect that industrial hygiene samples collected during inspections would be released under FOIA. (Read more here).  The AFL-CIO disagreed strongly with this interpretation of the Occupational Safety and Health Act of 1970.  In an amicus brief filed with the court, the AFL-CIO said:

"This argument ignores the obvious fact that OSHA has the statutory authority to enter the workplace and conduct air sampling.  Inspections are conducted pursuant to this statutory authority regardless of whether the employer demands a warrant.  There is nothing remotely 'voluntary' about OSHA obtaining the air sampling data -- OSHA is entitled to the data by statute."

Judge Mary L. Cooper (US District Court of New Jersey) ruled in favor of disclosure, and gave the Department 30 days to prepare a log listing any specific records it considers privileged.  She writes:

"Failure to submit a log within that timeframe will result in judgment being entered in plaintiff's favor pursuant to this memorandum opinion.  If a log is submitted, judgment will be entered following any such supplemental proceedings the Court finds necessary."

In response to the judge's favorable ruling, Adam Finkel had this to say:

"We all know how much the current Administration is obsessed with secrecy.  But the FOIA law carved out seven legitimate reasons for the federal government to withhold information from its citizens, none of which applies to workplace exposure data.  I believe OSHA knew they would lose this case, but were happy to spend taxpayer money to tie up my request in court for two years."

*Affected employers would be those at which OSHA conducted an inspection between the years 1975 -2005 where industrial hygiene samples were collected.  Recall that very few workplaces ever get an OSHA inspection, and at a much smaller number do inspectors collect samples for air contaminants.