Court Rules OSHA Must Reveal Injury Rates

Aug. 4, 2004
The government must make public the names of the 13,000 worksites with the highest lost-workday injury and illness (LWDII) rates in 2000, along with their rates, a federal judge has ruled.

New York Times' reporter David Barstow asked for the information in 2002 under the Freedom of Information Act (FOIA), but the Department of Labor (DOL) essentially denied the request.

Based on data received for the year 2000, OSHA identified approximately 13,000 facilities with LWDII rates considerably above the national average.

The newspaper sought the names and rates of these facilities in order to compile a ranking of the most dangerous workplaces in America. OSHA collects the data in order to target high hazard workplaces for programmed inspections.

The government has 60 days to decide whether to appeal the July 29 decision by the U.S. District Court for the Southern District in New York.

"We're reviewing the decision and our options to determine what approach best advances the department's mission of protecting workers," said Labor Department spokesman Ed Frank in a statement.

The Labor Department argued the data are confidential commercial information that could be used by competitors of the targeted worksites to figure out how many hours employees worked at some companies. The total number of hours worked is used, along with the number of injuries and illnesses, to calculate the LWDII rate.

OSHA claimed it would have to seek permission from all 13,000 facilities before releasing the information.

In a July 2003 letter to Barstow, the Labor Department explained that "approximately 30,290 staff hours, or approximately 15 work-years of effort will have to be expended to respond to your request as currently written."

Judge Shira Scheindlin rejected the Labor Department's arguments, characterizing the government's position with such words as "illogical" and "puzzling." The court also called it "especially troubling" that the Labor Department waited seven months before failing explicitly to grant or deny the Times' FOIA request. Agencies are required by law to determine within 10 working days whether to comply with information requests, with an additional 20 days for appeals.

"We thought the decision was exactly right," commented David McCraw, the lawyer who represented the Times in the case, in an Aug. 4 interview. "We were pleased that Judge Scheindlin saw fit to criticize the slow handling of our initial FOIA request and appeal." All too often agencies ignore the legally binding deadlines in FOIA, he explained.

Perhaps more important, if the government complies, the decision means the public will know which companies are running the nation's most dangerous worksites - and how OSHA is addressing them.

Once it obtains the information for the year 2000, the Times intends to rank all 13,000 companies by injury and illness rates and to follow up year after year to determine if OSHA enforcement or a company's own efforts are altering its injury and illness rate.

"This is a story we're not going to walk away from," McCraw asserted. The Times won a Pulitzer Prize this year for two series of articles by Barstow and Lowell Bergman that investigated workplace deaths and the limitations of OSHA's response.

Asked if he was planning to seek OSHA's injury and illness rates for later years, McCraw replied, "I requested the rates for 2001 yesterday."

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