Now a professor of environmental and occupational health at the University of Medicine & Dentistry of New Jersey School of Public Health and a visiting professor at the Woodrow Wilson School at Princeton University, Finkel first sought the release of the OSHA beryllium records when he filed a Freedom of Information Act (FOIA) request on June 20, 2005.
On Nov. 22, 2005, Finkel filed a new FOIA lawsuit against the Department of Labor, in which he asked OSHA to release the entire contents of its database on toxic exposures. The database contains the concentration of each substance found (e.g., asbestos, lead, benzene, silica dust), the company from which the sample was taken and an encrypted code for the inspector who took the sample.
Finkel also requested coded information about the results of beryllium sensitization tests conducted on OSHA inspectors.
According to a June 29 ruling by Judge Mary Cooper of the U.S. District Court for the District of New Jersey, the Labor Department claimed that it refused to release the data because of “trade secrets” lurking within the database as well as the necessity of not releasing the coded ID numbers of each inspector for the sake of their privacy.
“The court finds the public interest in disclosing information that will increase understanding about beryllium sensitization and OSHA’s response thereto is significant,” Cooper wrote. “This public interest sufficiently outweighs the inspection officers' limited privacy interests in their ID numbers.”
Finkel: Database Is a “Goldmine”
Finkel told OccupationalHazards.com that the database is a “goldmine” of information, as it can give researchers valuable insight on the impact of beryllium exposure.
He argued that “more life-and-death research” should be directed toward beryllium, “since 11 [OSHA inspectors] were already found positive and there might be other people, especially among retirees that should be tested.”
This information could be especially helpful when the agency decides to update the beryllium standard – which, according to Finkel, is overdue.
“[Having the database available] is terrific in terms of science,” Finkel said.
A call made to OSHA for comment was not returned. When Finkel was asked if he thought that the Labor Department would appeal the ruling, he replied: “ I'd love to know that.”
Finkel: Database Would Shed Light on OSHA Performance
In 2003, then-OSHA Administrator John Henshaw tried to fire Finkel after Finkel disclosed to a media outlet that OSHA made a decision to not offer medical testing to its own inspectors who had been exposed to beryllium dust. Finkel consequently sued OSHA for whistleblower retaliation, and as a result OSHA offered him a large monetary settlement.
In 2004, OSHA began offering the beryllium blood test, and disclosed in 2005 that 4 percent (11 of the first 271 inspectors tested) had tested positive for sensitization. According to Finkel, this was an unexpectedly high incidence that has serious implications for the tens of thousands of private-sector workers who are exposed to beryllium daily rather than several times in a career.
However, Finkel explained that having the database accessible would serve a broader purpose. He wants to use the data to give a comprehensive overview on OSHA's overall performance and not just use it “as a snapshot of what is going on in the industry world.”
“As soon as I shed light on the beryllium [issues], I want to look [at the database] from the point of view of having been at OSHA, and having written some of these rules,” Finkel said. “I don't know what I'll find, but somebody needs to look at it after 30 years and see what the data tells us about whether OSHA has credible program.”