The Center for Investigative Reporting v. United States Department of Labor

Background

The Center for Investigative Reporting and Will Evans submitted three requests under the Freedom of Information Act (FOIA) to the Occupational Safety and Health Administration (OSHA), a division of the Department of Labor. The disputed requests sought forms that Amazon had submitted to OSHA summarizing workplace injuries and illnesses at certain facilities in Ohio and Illinois. The first request, concerning an inspection of an Amazon warehouse in Stoughton, Massachusetts, was no longer disputed.

The disputed OSHA Form 300As summarize annual totals for deaths, injuries, illnesses, days away from work, job transfers or restrictions, employees, and hours worked. They do not include injured employees’ identifying information. The Department produced nine Amazon Form 300As but redacted the average number of employees, total hours worked, and all injury-and-illness data. The Department ultimately relied on FOIA Exemption 4, which protects commercial or financial information obtained from a person that is privileged or confidential.

Parties’ positions

The Department argued that the Form 300A data was confidential commercial information under the Supreme Court’s interpretation of Exemption 4. Amazon submitted a declaration stating that it treated the forms as confidential, stamped them confidential, and shared them only in specified circumstances, including with OSHA, employees or their representatives, and employees at its facilities through required posting.

The plaintiffs argued that the forms were not confidential because Amazon was required to post them for employees and provide them to current and former employees and their representatives. They also presented at least twenty Form 300As that Amazon had previously provided to government agencies without confidential markings.

Court’s analysis

The court explained that the government bears the burden of proving that a FOIA exemption applies and that courts review withholding decisions independently. Under the Supreme Court’s decision in Food Marketing Institute v. Argus Leader Media, information is confidential when it is customarily and actually treated as private or secret, and may also depend on whether it was provided to the government under an assurance of privacy.

The court held that the Department had not shown that Amazon customarily and actually kept the Form 300A data confidential. OSHA regulations required Amazon to post the forms at its facilities for three months. The regulations also required Amazon to preserve the forms for five years and provide them upon request to current employees, former employees, and broadly defined employee representatives. The court found that these disclosures could reach a large group and were not subject to restrictions on further disclosure.

The court also found that Amazon’s confidentiality message did not establish confidentiality for Form 300A data. The message focused on personally identifiable and medical information found in the more detailed Form 300 logs and incident reports, not information contained in the Form 300As. The court noted that Form 300As do not contain that identifying medical information.

Separately, the court held that the Department could not show that the data had been submitted under an assurance of privacy. Before Amazon submitted the disputed forms, OSHA had publicly stated that it intended to post data from electronic submissions on a publicly accessible website. The Department later clarified that it expected to release the data approximately four years after the relevant year, and OSHA did not definitively state that it would not release the data until August 23, 2019, after Amazon had submitted all the disputed forms. The court concluded that later statements did not change the confidentiality status at the time of submission.

Ruling and effect

The court found that the Form 300As did not contain confidential information protected by Exemption 4 and could not be withheld on that basis. It denied the Department of Labor’s motion for summary judgment and granted the plaintiffs’ cross-motion for summary judgment. The Department was ordered to provide the plaintiffs with Amazon’s Form 300As without redacting the data within fourteen days. The Department could continue redacting the signatures and direct phone numbers of the forms’ signatories because the plaintiffs did not challenge those redactions. Judge Sallie Kim stated that the court would issue a separate judgment and directed the clerk to close the file.