Employers’ injury, illness data is public information, federal judge rules

Oakland, CA — Data from OSHA’s Form 300A is not confidential – in part because employers already are required to share injury and illness information with current and former employees, who in turn are free to share it, a federal judge has ruled.

“There are no restrictions on further dissemination of Form 300A information; as OSHA explained in its final rule in 2016, ‘[e]mployees or their representatives can … obtain and make public most of the information from these records at any time, if they wish,’” Magistrate Judge Donna M. Ryu, from the U.S. District Court for the Northern District of California, wrote in her June 4 decision. “Therefore, the Form 300A information is both readily observable by and shared with employees, who have the right to make the information public.”

Ryu’s ruling was on a lawsuit stemming from a Freedom of Information Act request made by the nonprofit news organization Center for Investigative Reporting, seeking information from OSHA Forms 300A, 300 and 301. OSHA no longer collects information from the latter two forms.

In response to the FOIA request, OSHA and the Department of Labor argued that Form 300A information was confidential under two exemptions, one of which exempts “law enforcement” records from public disclosure. After the center filed its lawsuit in April 2018, OSHA then claimed that Form 300A information fell under Exemption 4 in the FOIA. This exemption protects “trade secrets and commercial or financial information [that is] obtained from a person and [is] privileged or confidential.”

In denying the exemption, Ryu pointed out that employers must post their completed Form 300A annually “in a conspicuous place or places where notices to employees are customarily posted” for at least three months after the year covered by the records. Employers also must keep 300A forms for five years and give them “to current and former employees and their personal representatives upon request at no charge.”

Lawyers for DOL also argued that OSHA “has taken the position that the Form 300A data should be kept private” since November 2017. Ryu writes that the evidence shows OSHA did not make public statements about that change in position until June 2018, “which is six months after the first deadline for Form 300A electronic submissions.”

In a June 5 blog post on its news website Reveal, CIP states: “Understanding which employers are the most dangerous could motivate more employers to improve safety and provide workers with a deeper understanding of the risks associated with their jobs. The records can also help hold companies accountable.”

D. Victoria Baranetsky, Reveal’s general counsel, called the decision “a great win for freedom of access,” adding, “Not only did the court order the government to disclose the records but it, it stated that what qualifies as confidential is not a subjective test.’”