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February 01, 2018
Watchdog group sues OSHA over safety records

The advocacy organization Public Citizen (https://www.citizen.org) is suing the Trump administration, claiming the Department of Labor (DOL) and OSHA are illegally withholding records about workplace injuries and illnesses.

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Under OSHA’s electronic injury and illness recordkeeping rule, which was finalized in May 2016, employers with 250 or more employees and employers in some high-risk industries with 20 or more workers were required to electrically submit their 2016 300A summary report to OSHA by December 31, 2017. The rule provides that OSHA will make the data public to encourage employers to prevent injuries and illnesses and to advance research into workplace safety. Now, though, states Public Citizen in a press release, “OSHA is trying to weaken the rule by eliminating some of its provisions, and OSHA has not made the summary injury and illness data public.”

In October, November, and December, Public Citizen submitted Freedom of Information Act (FOIA) requests for the summary records submitted by employers. The group intended to use the information to conduct research on job safety and health. Public Citizen claims its October and November requests were inappropriately denied.

OSHA’s response to Public Citizen’s FOIA request explained the denial as follows:

“As stated in the preamble to the Improve Tracking of Workplace Injuries and Illnesses final rule (see 81 FR 29624), OSHA plans to use the establishment-specific data for enforcement targeting purposes. Disclosure of the data before and while it is being used to select establishments for inspection would in turn disclose OSHA’s techniques for law enforcement investigations. Thus, OSHA has determined the data submitted under the electronic reporting requirements are exempt from disclosure while they are being used for enforcement targeting purposes.”

Public Citizen appealed, arguing that the records are not exempt from FOIA because they were not compiled for law-enforcement purposes and releasing them would not disclose techniques and procedures for law enforcement investigations or prosecutions.

“When OSHA issued the final rule in 2016, it said that it would publicly disclose these records to encourage safety,” noted Sean Sherman, the Public Citizen attorney handling the lawsuit. “For OSHA to now claim that releasing these same records could somehow compromise law enforcement is absurd.” The suit asks the court to find that failure to provide the records is unlawful and to order DOL and OSHA to provide them.

OSHA is currently drafting a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improved Tracking of Workplace Injuries and Illnesses” final rule, including the collection of data from the 300 and 301 forms, which provide more detailed information than the 300A summary. OSHA will seek comments on those provisions when the NPRM is published.

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