Osha Data/CIH Inc. v. U.S. Dep't of Labor

Decision Date26 July 2000
Docket NumberNo. 99-5457,99-5457
Citation220 F.3d 153
Parties(3rd Cir. 2000) OSHA DATA/CIH, INC., APPELLANT V. UNITED STATES DEPARTMENT OF LABOR
CourtU.S. Court of Appeals — Third Circuit

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 98-cv-00283) District Judge: Hon. Alfred J. Lechner, Jr. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Philip D. Stern, Esq. [argued] The Common - Suite 203 225 Millburn Avenue Millburn, NJ 07041 Counsel for Appellant

Susan Handler-Menahem, Esq. Office of United States Attorney 970 Broad Street, Room 700 Newark, NJ 07102 Wendy M. Keats, Esq. [argued] Leonard Schaitman, Esq. United States Department of Justice Civil Division, Appellate Staff Room 9152 601 D Street, N.W. Washington, DC 20530 Counsel for Appellee

Before: Mansmann, Nygaard and Rendell, Circuit Judges

OPINION FOR THE COURT

Rendell, Circuit Judge.

In this appeal, we are asked to determine whether the projected $1.7 million cost of notifying companies affected by two requests seeking potentially confidential information under the Freedom of Information Act ("FOIA"),1 and of evaluating those companies' responses, were properly chargeable to a commercial use requester as "review costs."2 This is an issue of first impression in the courts of appeals. The United States District Court for the District of New Jersey dismissed two counts of a four-count FOIA suit on the basis that plaintiff-appellant, OSHA Data/CIH, Inc., who had requested the data in question, was responsible for paying such costs to defendant-appellee, the United States Department of Labor,3 but that OSHA Data had indicated it was unable to pay these costs. OSHA Data now appeals from the District Court's dismissal of these two counts (Counts I and II) of its action. We agree with the District Court that the costs of notification were "review costs" that OSHA Data was required to pay in connection with the agency's determination of the appropriate disposition of the FOIA requests, and will affirm the dismissal of Counts I and II.

The District Court also dismissed the remaining two counts of the suit on mootness grounds. OSHA Data concedes that Count IV was moot but argues that Count III was incorrectly dismissed. We agree that Count III was properly dismissed as moot and will affirm the dismissal of this count as well.4

I. Facts and Procedural History

The facts of this case are largely undisputed. OSHA Data is a private business that collects regulatory compliance and enforcement information from various federal government agencies, repackages that information into computer databases and customized reports, and then sells the information to its clients.5 See OSHA Data web site, Who We Are (visited June 1, 2000) ; see also A. at 172 (statement of Philip D. Stern, counsel for OSHA Data). Among the governmental information gathered by OSHA Data is data from the DOL concerning workplace compliance with Occupational Safety and Health Administration ("OSHA") requirements. The DOL routinely supplies this information to OSHA Data in the form of 9-track computer tapes, provided in response to OSHA Data's FOIA requests.

At issue here are three separate FOIA requests for information from the DOL, which form the basis of the three counts in OSHA Data's complaint.6 Counts I and II seek certain records maintained by the DOL7 for calculating Lost Work Day Injury and Illness ("LWDII") rates for individual work sites. The LWDII rate for a particular workplace is the ratio of the number of incidences of serious injuries and illnesses to the number of employee work hours performed at that work site during a given time period. The information needed to calculate the LWDII rate is generated by the private employers themselves.

OSHA Data's first FOIA request (Count I)8 sought data collected by the DOL in its 1996 "Data Collection Initiative," a massive information-gathering endeavor covering approximately 80,000 establishments in the manufacturing sector and in other industries; these industries were chosen on the basis either of high injury and illness rates or previous DOL inspection history. See A. at 5-6, 12, 16. The information obtained through the Data Collection Initiative included each establishment's name and address, the average number of employees who worked at that establishment in 1995, total employee work hours for 1995, numbers and kinds of occupational injuries and illnesses at the establishment in 1995, and whether those injuries and illnesses resulted in deaths or lost work days. See A. at 146-49. The DOL would use this information to calculate injury and illness rates such as the LWDII rate. See A. at 19. Much, but not all, of the data collected in the Data Collection Initiative paralleled information that employers had already been recording on a form called "OSHA Form 200" or "Log 200." In the FOIA request that is the subject of Count I, OSHA Data requested the following:

[A] copy of all Log 200 data gathered from approximately 80,000 employers under the so-called "Data Collection Initiative" which began in February 1996. We specifically request the data include all captured fields of information such as the establishment name and address, name and telephone number of person who provided the data, average employment, hours worked, reporting period and the calculated LWDI [sic] value itself.

A. at 12 (Letter from Matthew M. Carmel, OSHA Data President, to DOL official Steve Newell, Oct. 29, 1996); see also A. at 5-6 (Complaint, First Count).

OSHA Data's second request also sought information on LWDII rates. In contrast to the Count I request, which targeted information obtained via the Data Collection Initiative survey, the Count II request concerned information obtained during the DOL's inspections of approximately 7000 individual work sites.9 In addition to conducting the inspection, DOL compliance officers were directed to record injury and illness data from the establishments' Log 200 forms; this data was then recorded in a centralized DOL database the Integrated Management Information System ("IMIS"). The database software would automatically calculate each establishment's LWDII rate from the information collected. OSHA Data sought the following information in its Count II request:

[A] copy of the Lost Work Day Injury and Illness (LWDI [sic]) data calculated during OSHA enforcement inspections and entered into the Integrated Management Information System (IMIS) and current through September 30, 1996. . . . We specifically request the data include all captured fields of information associated with calculation of the LWDII such as the inspection activity number, number of work hours, reporting period and the LWDII value itself.

A. at 32 (Letter from Matthew M. Carmel, OSHA Data President, to DOL official Bruce Beverage, Oct. 24, 1996); see also A. at 6-7 (Complaint, Second Count).

The Count III request sought certain computerized information relating to the DOL onsite inspections themselves. The Count III request is limited to information collected in the 30 days immediately prior to creation of the computer file tape. OSHA Data alleges that this FOIA request "was targeted specifically to address [DOL]'s new policy of withholding the most recent 30 days of information from the computer `derived' file supplied to FOIA requesters." OSHA Data Br. at 9; see also A. at 8-9 (Complaint, Third Count). The DOL does not admit that it has such a policy. See A. at 63 (Answer, Third Count); DOL Br. at 51-53. The Count III request seeks the following information:

[A] copy of the sequential IMIS derived file. We specifically request the file contain all available data elements including the inspection, violation, administrative payment, hazardous substance, accident, related activity, debt, event history and optional segments for all inspection records up to and including the date of file tape creation. The requested file period of coverage is 30 days.

A. at 46 (Letter from Matthew M. Carmel, OSHA Data President, to DOL official Bill Wright, Sept. 12, 1997); see also A. at 8-9 (Complaint, Third Count).

The DOL denied the Count I and Count II requests 10 and, thereafter, OSHA Data lodged administrative appeals of these denials.11 See A. at 5, 7. After awaiting resolution of the appeals for over a year, OSHA Data filed a three-count complaint in the United States District Court for the District of New Jersey, requesting an injunction preventing the DOL from withholding the records -- in effect, an injunction compelling the DOL to produce the records pursuant to FOIA.12 The complaint also contained a request for reasonable attorney's fees and litigation costs. The DOL moved to stay the matter as to Counts I and II, arguing that, because of potential issues of confidentiality, the agency was required to implement a process of notifying affected companies before it could finally determine whether the requested records were subject to disclosure under FOIA. The DOL asserted that this procedure was mandated by its own regulations, see 29 C.F.R. S 70.26(d), and that these costs, incurred in order to make a determination of whether disclosure was appropriate, were "review costs." The DOL further contended that OSHA Data, as a "commercial use" requester of FOIA records, was required by statute to pay all "review costs" in connection with the request, and that these "review costs" would include the costs of notifying the companies and evaluating their responses.13

After an interim grant of the stay requested by the DOL,14 the District Court ruled on the merits of OSHA Data's Motion for Summary Judgment as to Counts III and IV, and on the DOL's Cross-Motion to Dismiss, or in the Alternative, for Summary Judgment as to all counts. See A. at 321-50 (unpublished Letter-Opinion and Order of District Court, May 10, 1999). The District Court granted the DOL Motion to...

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