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DOL Must Hand Over Amazon Safety Data to Journalism Outlet (1)

July 7, 2020, 3:36 PM; Updated: July 7, 2020, 10:39 PM

The U.S. Labor Department must give an investigative journalism organization unredacted safety records related to Amazon.com Inc. warehouses in two states within 14 days of a federal court order.

U.S. Magistrate Judge Sallie Kim in San Francisco directed the department to turn over those illness and injury records in a July 6 ruling.

The lawsuit was filed by the Center for Investigative Reporting and journalist Will Evans last year after the federal Occupational Safety and Health Administration, a Labor Department subagency, had denied their Freedom of Information Act request, citing exemptions to public disclosure requirements.

CIR’s Sept. 5 FOIA suit sought access to forms containing annual statistics about injuries, illnesses, and fatalities—known as 300A—at some Amazon work sites in Ohio. They also sought an injunction requiring the agency to release to CIR and Evans OSHA documents on Amazon warehouses in Massachusetts and Illinois. The Massachusetts inquiry is no longer in dispute.

Amazon, which wasn’t a party to the lawsuit, had previously told OSHA it opposed the release. But, Kim cited the size of the company’s workforce and employee access to safety documents, in deciding to make them available.

“It is not clear that Amazon could restrict employee’s use and disclosure of these forms,” the judge said. “Amazon explained that it posts the forms in an area which is accessible only to employees. Nevertheless, Amazon is a large company. Thus, pursuant to the regulation, the Form 300A is accessible to a large number of people.”

OSHA’s denials were made under FOIA exemptions 7 and 4, which protect regulatory enforcement documents and trade secrets, respectively.

Disclosure Demands

The nonprofit news organization’s lawsuit follows a slew of other claims filed in 2019 by nonprofit groups seeking more open and public records from OSHA. Consumer advocacy group Public Citizen and several states have separate cases pending.

Employer groups and others, however, argue that sharing the files would be an invasion of employee privacy, would present a distorted picture of workplaces, and could impede OSHA’s ability to protect worker health and safety.

Ed Foulke, who led OSHA during the administration of President George W. Bush, warned that the precedential value of the case could extend beyond California, as ongoing and prospective FOIA lawsuits will point to the decision in support of their arguments.

Foulke, who now practices safety law as a partner at Fisher Phillips in Atlanta, said he anticipates the decision will force agencies to settle existing disputes. “More cases will be filed—or more FOIA requests will be made, then we’ll see how OSHA responds,” he said.

Kim also said the Labor Department couldn’t rely on a declaration from Amazon to demonstrate that it treats 300As as confidential and doesn’t disclose them to the public. “The Court finds that, based on the evidence in the record, Amazon has not customarily and actually treated the data in the Form 300As as confidential,” the magistrate judge said.

Opening the Door

Rachel L. Conn, an associate in Nixon Peabody’s Labor & Employment group, told Bloomberg Law that the decision could make it easier for media outlets as well as labor unions to request injury and illness data from the government “as a fishing expedition” to prove companies have high injury rates.

Conn added that the ramifications of the decision can also create adverse publicity for companies where their 300As are released to the media and different outlets “that can see the number of cases and types of injuries within a company.”

“The court clarified that the reach of exemption 4 in that it isn’t all-encompassing and that is an important decision in and of itself,” said Victoria Baranetsky, general counsel at the Center for Investigative Reporting.

OSHA and a representative from Amazon didn’t respond to requests for comment. Evans declined to comment.

Debbie Berkowitz, worker health and safety program director with the National Employment Law Project, said the Labor Department’s original denial of the information is a testament to the Trump administration’s “effort to suppress the public’s ability to see data on companies.”

The case is Ctr. for Investigative Reporting v. DOL, N.D. Cal., No. 19-CV-05603-SK, 7/6/20.

(Updates with attorney commentary throughout.)

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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