In 2017, Public Citizen submitted Freedom of Information Act (FOIA) requests to the Occupational Safety and Health Administration (OSHA) for release of summary work-related injury and illness data (OSHA Form 300A data) it collected pursuant to the final rule entitled “Improve Tracking of Workplace Injuries and Illnesses” (the Electronic Reporting Rule). Although for more than two decades OSHA had routinely released Form 300A data, OSHA withheld the records in full, asserting that they contain confidential commercial information exempt from disclosure under FOIA exemption 4.
In contesting OSHA’s withholding, Public Citizen pointed out that the entire Form 300A must be posted for three months in a conspicuous place at the worksite, and copies must be provided at no charge within one business day of a request by any employee, former employee, employee representative, or personal representative. There is no restriction on further dissemination of the information once it is posted or provided. Until recently, OSHA publicly posted Form 300A data that it collected as part of its enforcement programs, and it routinely released Form 300A reports in response to FOIA requests. When it issued the Electronic Reporting Rule in 2016, OSHA stated that it would make the submitted information immediately available to the public in a searchable online database.
The parties completed briefing on cross-motions for summary judgment on September 5, 2018. While the motions were pending, the Supreme Court decided Food Marketing Institute v. Argus Leader, which announced a new standard for determining whether information is “confidential” within the meaning of Exemption 4. In light of that decision, the parties filed new cross-motions for summary judgment.
On June 23, 2020, the Magistrate Judge recommended that the district court deny OSHA’s renewed motion for summary judgment and grant plaintiff’s renewed cross-motion for summary judgment because the requested records are not exempt from disclosure under FOIA Exemption 4. The Magistrate Judge found that OSHA had failed to show that the Form 300A data is customarily kept private or closely held by the submitting employers, and OSHA had provided no assurance of privacy to the submitters of the information.
On July 20, 2020, OSHA announced that it would not file objections to the Report and Recommendation, and would produce the requested records. The Court has entered an Order requiring that OSHA release the documents, in full, by August 18, 2020.