Judge Rules OSHA Must Disclose Safety Violators

August 9, 2004

The government must disclose the names of companies with the worst safety records along with their injury rates, a federal judge has ruled.

The Occupational Safety and Health Administration, a Labor Department agency, had denied a Freedom of Information Act request filed in 2002 by The New York Times. The newspaper was seeking a list of the 13,000 companies that OSHA had identified as having injury and illness rates greater than the national average as well as their scores, essentially providing a ranking of the most hazardous work places in America.

Last week’s ruling in U.S. District Court for the Southern District in New York ordered OSHA to provide the information for the year 2002.

“We’re reviewing the decision and our options to determine what approach best advances the department’s mission of protecting workers,” Labor Department spokesman Ed Frank said.

OSHA, represented by the Justice Department, has 60 days to decide whether to appeal.

The agency had argued the data was confidential because competitors would be able to determine, based on the injury rates, how many hours employees worked at certain companies. Hours worked and number of incidents causing lost workdays are used to calculate the rate.

OSHA sent letters to the 13,000 employers notifying them that their rates were significantly elevated and encouraging them to reduce injuries. The government contended those companies and their addresses were available on OSHA’s Web site, and the newspaper could contact them to ask for their injury rates.

Judge Shira A. Scheindlin rejected that argument.

“The court’s clerks expended considerable time searching OSHA’s Web site for these names and addresses, but were unable to locate them,” Scheindlin wrote in the ruling. “This is likely because OSHA’s Web site is extraordinarily difficult to navigate.”

OSHA, in a February news release, said the 13,000 work sites are
listed alphabetically by state at
http://www.osha.gov/as/opa/foia/hot_10.html. The list only includes
states covered by the federal OSHA, and not those 21 states that
operate their own government-approved efforts.

The Labor Department, in denying The Times’ request for injury rates, said it would have to get permission from all 13,000 employers before releasing the data. That would be too burdensome because it would require 30,290 staff hours, or about 15 years to respond, it said.

The ruling harshly criticized the Labor Department, at times calling its arguments misplaced, illogical, puzzling and especially troubling.

But the government said the newspaper did not “exhaust its administrative remedies” in negotiating with the department for the information before filing suit. The judge disagreed and noted that the department’s response to an appeal by the Times was seven months late.

The Times won a Pulitzer Prize this year for two three-part series by David Barstow and Lowell Bergman that investigated workplace deaths and the “culture of bureaucratic reluctance” at OSHA.

Copyright 2004 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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