Suit Seeks Public Release of All OSHA Sampling Results

Agency warns trade secrets may be made public

May 24, 2006 -- The U.S. Dept. of Labor has been hit with a lawsuit filed under the Freedom of Information Act that seeks to release the results of air and other types of sampling data collected by the Occupational Safety and Health Administration during site inspections of all workplaces nationwide, from 1979 through June 1, 2005. The suit -- Adam M. Finkel v. United States Department of Labor, Occupational Safety and Health Administration -- was filed November 22, 2005, in the U.S. District Court of New Jersey.

According to OSHA, the request may cover as many as 1 million samples, each of which would include the name and address of the establishment, the identity and type of the substances sampled (personal, bulk, area, wipe, etc.), and the numerical results of the sample analysis. Other information may be included, too.

In April, OSHA notified all employers whose facilities were the subject of sampling over the period, and made clear that releasing the data could lead to disclosing confidential information, such as trade secrets. OSHA invited the views of employers on the effects of such a public release of information.

Specifically, OSHA indicated that organizations that object to the disclosure should provide a detailed statement of their objections, with specific reasons why commercial or trade secret information should not be revealed.

According to a spokesman for OSHA, a total of 12 comments about the possible release have been received, including comments from the American Foundry Society and the National Association of Manufacturers.

The suit was filed by Adam M. Finkel, formerly the regional administrator for OSHA’s Region 8, in Denver, and now a professor of Environmental and Occupational Health at the University of Medicine & Dentistry of New Jersey. A source commented that Finkel is acting as a "whistleblower" in order to force OSHA to collect and report data on beryllium contamination in its site inspections.

Finkel, who is also a visiting professor at Princeton University, is likewise characterized as a whistleblower in the statement of facts accompanying the lawsuit brief. There, the contention is that the Dept. of Labor has refused without justification to release the information sought by Finkel in a June 12, 2005 FOIA request, in an administrative appeal following that request, in a second FOIA request of August 12, 2005, and in a subsequent administrative appeal. He alleges there that the Dept. of Labor’s refusal to release the OSHA records is a result of "continuing animus" against him as a result of an earlier whistleblower action.

In the FOIA request filed in August 2005, Finkel states the information in the records will be used "to conduct statistical analyses of trends in beryllium concentrations by time period, geographic region, industry sector, etc., and to estimate the exposure potential of the OSHA compliance officer workforce, … "

Beryllium is a highly toxic light metal used as an alloy, particularly with copper, for applications that require electrical and thermal conductivity, high strength and hardness, and corrosion resistance, among other characteristics. Beryllium alloys are used to make spot-welding electrodes, springs, non-sparking tools, and electrical contacts, as well as to form lightweight structural components for defense and aerospace applications.

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