The Center for Investigative Reporting v. Department of Labor

Background

The Center for Investigative Reporting and Jennifer Gollan filed a Freedom of Information Act (FOIA) action seeking injunctive relief from the Department of Labor. Their January 31, 2018 request sought all data submitted to the Occupational Safety and Health Administration (OSHA) through its Injury Tracking Application from August 1, 2017 onward under OSHA’s rule concerning electronic reporting of workplace injuries and illnesses.

OSHA’s search identified approximately 237,000 records containing Form 300A information submitted between August 1, 2017 and February 6, 2018. It found no Form 300 or Form 301 records. OSHA initially withheld the responsive records under FOIA Exemption 7(E), which covers certain law-enforcement records whose disclosure could reveal investigative techniques or guidelines. In the summary-judgment proceedings, however, the Department of Labor relied on Exemption 4 instead. That exemption covers trade secrets and commercial or financial information obtained from a person that is privileged or confidential. The Department also argued that its search was adequate.

Exemption 4

The court applied the Supreme Court’s test from Food Marketing Institute v. Argus Leader Media: information is confidential under Exemption 4 when it is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy. The court found that the Department’s evidence—comments from employers and trade groups expressing concerns about disclosure—showed subjective opposition to release but did not establish how employers actually kept and treated the Form 300A information.

The court also emphasized that employers were required to post completed Form 300A forms where employee notices were posted, preserve them for five years, and provide them to current and former employees and their representatives upon request. Employees or their representatives could make most of the information public. OSHA had also stated in its 2016 rulemaking that it intended to post the submitted data on a publicly accessible website. The court concluded that the Department had not shown that the information was both customarily and actually treated as private and provided under an assurance of privacy. It therefore failed to establish that the information was confidential under Exemption 4.

The court did not reach the parties’ arguments about whether the Form 300A information was “commercial” under Exemption 4 or whether the foreseeable-harm requirement in 5 U.S.C. § 552(a)(8)(A) was satisfied.

Adequacy of the Search

The court held that OSHA’s search was reasonably calculated to uncover all relevant documents. Declarations from Amanda L. Edens explained that responsive data was stored in OSHA’s Injury Tracking Application and transferred to a specific Microsoft Access database. OSHA searched that database, found the approximately 237,000 Form 300A records, and found no Form 300 or Form 301 records because OSHA was not collecting that information at the time.

The court found the declarations sufficiently detailed to establish that the Department complied with its FOIA search obligations. It noted that an agency need not search every record system when it adequately identifies the system likely to contain the requested records.

Disposition

The court granted in part the plaintiffs’ motion for summary judgment and denied the Department of Labor’s motion for summary judgment. The parties were ordered to meet and confer and submit a proposed judgment within 14 days of the order.