Judge Orders OSHA to Release Toxic Chemical Database

ON June 29, a federal judge found that the U.S. Department of Labor (DOL) was unjustified in its decision to withhold data related to possible exposures of OHSA inspectors to unhealthy levels of beryllium (Finkel vs. United States Department of Labor, No. 05-5525).

The ruling by Judge Mary Cooper of the U.S. District Court for the District of New Jersey came in a Freedom of Information Act (FOIA) lawsuit filed by Dr. Adam M. Finkel, a former chief regulator and regional administrator at OSHA from 1995 to 2003, and now a professor of environmental and occupational health at the University of Medicine and Dentistry of New Jersey, School of Public Health.

Finkel had made two requests pursuant to the FOIA for OSHA records relating to possible exposures of agency inspectors to unhealthy levels of beryllium. His first request dated June 28, 2005, sought:

  • sampling records from June 1, 1979 to June 1, 2005, in which the substance beryllium was analyzed.
  • a list of coded ID numbers for all of the OSHA employees who had received a beryllium exposure test since January 2004, coded in such a way to avoid revealing the employees' identity.
  • the results of any analyses OSHA has undertaken to estimate the cumulative exposures of any of its employees to beryllium.

His second separate request dated Aug. 12, 2005, sought all employer sampling records from OSHA's Salt Lake City Technical Center's analytical database beginning on or about June 1, 1979 through June 1, 2005, with the records containing either all of the fields present in the database, including sample types and results. Finkel's request explained that he wanted the information "in order 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, a population recently found to have an unexpectedly high rate of sensitization to beryllium." He further explained the requested information is in the interest of the general public "in order for the public to better understand the quantitative relationship between exposure to beryllium and the probability that an exposed individual will become sensitized to beryllium."

The DOL subsequently released the sampling records from the database requested by plaintiff, but withheld: employers' names and addresses, day of the inspections, inspection ID numbers, OSHA office ID numbers and CSHO (compliance safety and health officer) ID numbers. The DOL also released the BeLPT (Beryllium Lymphocyte Proliferation Test) results of the OSHA employees who took the test, but substituted randomly assigned ID numbers for the coded ID numbers that consist of the last four digits of the OSHA employee's Social Security number. Finkel, however, maintained that the data provided by the DOL is unresponsive and does not contain information that he can use for the purposes outlined in his two requests.

DOL argued that its refusal to release the data was due to "trade secrets" within the database and that release of the inspectors' "coded ID numbers" would constitute an unwarranted invasion of the inspectors' personal privacy.

The judge found that "the public interest in disclosing information that will increase understanding about beryllium sensitization and OSHA's response thereto is significant. This public interest sufficiently outweighs the inspection officers' limited privacy interests in their ID numbers."

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