Obtaining workplace injury reports from the federal government was supposed to be easy. Obama-era regulations required employers to send them to the federal Occupational Safety and Health Administration, which had committed to posting them online. But new regulations introduced by the Trump administration thwarted the posting of material online, and the U.S. Department of Labor now says, in a recent lawsuit, that workplace safety records cannot be disclosed under the Freedom of Information Act because they are confidential, commercial business records.

In January, Reveal from The Center for Investigative Reporting filed a public records request with OSHA, an agency of the Department of Labor, for all OSHA Forms 300, 300A and 301, which the government required to be publicly posted in a 2016 agency rule.

The government initially withheld the workplace injury and illness records by claiming they were law enforcement materials. But after a recent Supreme Court decision, Food Marketing Institute v. Argus Leader Media, expanded the FOIA exemption for confidential business information, the government changed its position and asserted this new reasoning for the records being withheld.

In a brief filed today, Reveal states that workplace injury and illness reports contain no business data, such as wage data, and serve no business function that would qualify them as commercial.

None of the reports Reveal is pursuing are confidential; companies regularly share them with employees, and regardless, employees often witness their co-workers’ injuries and illnesses.

Reveal seeks an order from the Northern District Court of California requiring the government to release all records, which are being improperly withheld from the public.

The brief states that the reasons given by the Department of Labor for withholding the workplace safety reports are also are inapplicable because FOIA exemptions are not meant to shield institutions from possible embarrassment, incrimination or litigation.

Because it is the Labor Department’s job to promote workplace safety practices, the agency previously mandated all employers to make workplace injury and illness reports easily accessible and visible to employees. Employers also are required to disclose the reports to current or former employees who request them.

The government has stated in the past that it would provide workers, researchers, the public and workplace safety regulators with critical information about dangerous workplaces, including the total number of deaths, lost-workday cases, and cases resulting in work restriction or transfer. In fact, the government has said that “public disclosure of work injury data will encourage employers to increase their efforts to prevent work-related injuries and illnesses.” Such work injury and illness reports also are released routinely in response to other FOIA requesters for public distribution.

Given this ongoing practice of making reports public, there is no apparent justification for the government to classify these records as confidential.

“But this case is especially significant,” said D. Victoria Baranetsky, general counsel at Reveal, “because to hold OSHA reports are confidential, business information could expand the reach of Exemption 4 to other unjustifiable records and permit withholding of important public information.”

The government’s reply is due Nov. 5 and Reveal’s reply is due Nov. 26. Argument is scheduled for 1 p.m. Dec. 12 in the Northern California District Court in Oakland.

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