William P. Seamon, Albany (Elizabeth R. Schuster of counsel), for petitioners.
Eliot Spitzer, Attorney General, Albany (Sean D. Quinn of counsel), for respondents.
Anthony Kane, J.
In this CPLR article 78 proceeding challenging a determination by the Industrial Board of Appeals (IBA) in which it affirmed a decision by the New York State Department of Labor (DOL) to deny access to petitioners to the complete and unredacted Occupational Injury Logs (Logs), petitioners Ronald Goldstein, Roger Benson and the Public Employees Federation, AFL-CIO seek a declaratory judgment that the DOL's interpretation of the Public Employee Safety and Health (PESH) (Labor Law § 27-a) Act was arbitrary, capricious and contrary to law; an order requiring respondents to provide all of the subject Logs in their complete and unredacted form; an order adjudging and decreeing that the IBA's denial of petitioners' administrative appeal constituted an erroneous interpretation of the law and was contrary to the PESH Act; and an order requiring respondents to comply with requests for Occupational Injury Logs in the future consistent with the PESH Act.
Respondents the State of New York, the Industrial Board of Appeals and the New York State Department of Labor have filed a verified answer seeking to dismiss the petition.
On or about December 4, 1998, petitioner Ronald Goldstein (Goldstein), an employee of the New York State Department of Labor and a representative of all Department of Labor PEF members on a State-wide basis, submitted a request to Donna Abrams (Abrams) at the DOL's Employee Relations Office for the most recent Department of Safety and Health (DOSH)  900 Forms (Forms) for 17 DOL work sites within New York City pursuant to part 801 of the PESH Act (12 NYCRR), section 27-a (9) of the Labor Law.
In a February 11, 1999 memorandum, Ms. Abrams advised Mr. Goldstein that DOL would permit access to the requested records to appropriate PEF representatives at the sites where the records were kept from which the names of the injured or ill employees would be redacted. DOL agreed to release information concerning the occupations and units of the injured or
ill employees contained in the subject Forms if the confidentiality of each employee could be ensured.
On March 25, 1999, petitioner Goldstein filed a formal PESH complaint pursuant to section 27-a (5) (a) of the Labor Law against the DOL on the grounds that DOL's refusal to provide unredacted copies of the subject Forms, including the names of the injured and sick employees listed on the Forms, violated the PESH Act and the Occupational Safety and Health Act (29 U.S.C. § 651 et. seq. [OSHA]). On or about September 8, 1999, petitioner Goldstein was served with a response to his complaint dated August 31, 1999, in which the PESH Bureau found that the complaint was " not sustained." As a result, pursuant to sections 27-a and 101 of the Labor Law, petitioners administratively appealed the PESH Bureau's determination to the IBA. By resolution of decision dated December 20, 2000, the IBA denied the appeal finding that DOL's statutory interpretation was not irrational.
Contrary to petitioners' assertions, the Court finds that the standard of review to be applied in assessing the propriety of respondent IBA's determination is not whether there was substantial evidence in support thereof, but rather whether there is a rational basis for said determination. Accordingly, the Court denies petitioners' request to have this matter transferred to the Appellate Division (see, CPLR 7803 ; 7804 [g]). In any event, as correctly noted by respondents, the issue of substantial evidence was not raised by petitioners until they submitted their Memorandum of Law in support of the petition.
In its appeal to the IBA, petitioners argued that, pursuant to 12 NYCRR 801.8 (b), petitioner Goldstein is entitled to review the entire logs and summaries of all recordable occupational injuries and illnesses in all 17 DOL offices in New York City. As respondents properly assert, petitioners did not appeal that portion of the PESH Bureau's determination which held that DOL was only required to provide access to the log summaries at the sites where they were maintained. Thus, that portion of the petition seeking an order of this Court directing DOL to provide unredacted copies of the summaries and to comply with future requests for production of the logs is not properly before this Court. Accordingly, the Court concurs with respondents that the only appropriate challenge before this Court is to the IBA's resolution of decision as it relates to " access" to
records pursuant to 12 NYCRR 801.8 since it is the IBA's decision that constitutes the final agency determination.S uccinctly stated then, the only issue before this Court is whether petitioners are entitled to examine unredacted log summaries at the sites where the logs are maintained.
Prefatorily, the Court notes that this is a case of first impression. As the basis of their application, petitioners argue that the mandatory access provisions of the PESH Act and Federal OSHA entitle petitioners to review theentire logs and summaries of all recordable occupational injuries and illnesses in all 17 DOL offices.
Petitioners argue that the PESH Act (Labor Law § 27-a), its implementing regulations (12 NYCRR part 801) and OSHA require an employer to provide full access for the examination of Occupational Injury Logs.
Section 27-a (4) (a) of the Labor Law provides, in relevant part, as follows:
" 4. Safety and health standards. a. The commissioner shall by rule adopt allsafety and health standards promulgated under the United States Occupational Safety and Health Act of 1970 (Public Law, 91-596) [footnote omitted] which are in effect on the effective date of this section, in order to provide reasonable and adequate protection to the lives, safety and health of public employees." (Emphasis added.)
12 NYCRR 801.8, entitled " Access to records," reads as follows:
" (a) Each employer shall provide, upon request, records provided for in sections 801.3, 801.5 and 801.6 of this Part for inspection and copying by any ...