The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
The New York Times Company (the "Times") filed this action
pursuant to the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552 et seq., seeking to compel the Department of Labor's
Occupational Safety and Health Administration ("OSHA") to
disclose Lost Work Day Illness and Injury ("LWDII") rates for
13,000 work sites. The Department of Labor ("DOL") now moves to
dismiss the complaint for lack of subject matter jurisdiction,
arguing that the Times failed to exhaust its administrative
remedies. In the alternative, the DOL seeks summary judgment. The
Times cross-moves for summary judgment.
A. OSHA and the LWDII Rate
The facts giving rise to this action are undisputed. The
Occupational Safety and Health Act (the "Act"), 29 U.S.C. § 651 et seq., is
intended to "assure so far as possible every working man and
woman in the Nation safe and healthful working conditions . . ."
29 U.S.C. § 651(b). OSHA is charged with carrying out these
purposes. Accordingly, OSHA provides information and guidance to
employers about how to initiate and improve safety and health
programs, and inspects workplaces to find, and remedy, violations
of the Act. See 29 U.S.C. § 656, 657.
As part of its efforts to identify workplaces with particularly
high injury and illness rates, OSHA collects data from
approximately 80,000 worksites in selected high hazard
industries. See Declaration of Joseph Dubois, Director of the
Office of Statistical Analysis of OSHA ("Dubois Decl."), Ex. E to
the Joint Statement of Uncontested Material Facts Pursuant to
Local Rule 56.1 ("56.1 Stmt."), ¶ 2. The surveyed worksites are
required to complete and return a form, or enter information on
OSHA's website, including (1) the total number of hours worked by
all employees, and (2) data from illness and injury records.
See Declaration of Miriam McD. Miller, Co-Counsel for
Administrative Law, Office of the Solicitor, U.S. Department of
Labor ("Miller Decl."), ¶ 8; OSHA Occupational Injury and Illness
Data Form, 2000, Ex. 1 to the Miller Decl.
OSHA uses the information it collects to calculate the annual
LWDII rate for each reporting workplace. The rate is based on the
LWDII = (N/EH) × 200,000
where N is the total number of incidents of lost workday
injuries and illnesses, and EH is the total number of hours
worked by all employees. The ratio (N/EH) is multiplied by
200,000 to convert the rate to a rate per hundred full-time
employees, on the assumption that a full-time employee works 2000
hours per year. See 56.1 Stmt. ¶ 8; Miller Decl. ¶ 4.
Based on data received for the year 2000, OSHA identified
approximately 13,000 workplaces with LWDII rates at or above 8.0,
which is "considerably greater than the national average."
Memorandum of Law in Support of the United States' Motion to
Dismiss the Complaint Or, in the Alternative, for Summary
Judgement ("Gov't Mem.") at 5. Thereafter, OSHA sent letters to
all 13,000 workplaces, notifying them that their LWDII rates were
significantly elevated, and encouraging them to take steps to
reduce those rates.*fn1
Notably, the names and addresses of the 13,000 workplaces with
high LWDII rates are available on OSHA's website. See Reply
Memorandum of Law in Support of Defendant's Motion to Dismiss the
Complaint Or, in the Alternative, for Summary Judgment ("Gov't Reply") at 2.*fn2 Moreover,
OSHA regulations require employers to post, at the work site, the
total number of incidents of lost workday injuries and illnesses.
See Gov't Mem. at 17 (citing 29 C.F.R. § 1904.32(a)(4),
1904.35(b)(2)). Thus, using the LWDII rate and information
regarding lost workday injuries and illnesses, theoretically the
formula can be "reverse engineered" to calculate EH, total hours
worked by all employees. For the year 2000, this information was
not publicly available. See Gov't Reply at 8. However,
beginning in February, 2003, OSHA required employers to post, at
their work sites, the total number of employee hours worked. See
id.; OSHA 300 form, Ex. B to the Supplemental Declaration of
Miriam McD. Miller ("Supp. Miller Decl.").
On October 1, 2002, David Barstow, a Times reporter, filed a
FOIA request with the DOL. The request sought three types of
information: (1) the LWDII rates for all worksites that received
a high-rate notification from OSHA in 2002; (2) the numerical ranking of work sites with high LWDII
rates; and (3) the LWDII rate for Ransom Industries, L.P.
("Ransom"). See 56.1 Stmt. ¶ 1; The Times's 10/1/02 FOIA
request, Ex. 1 to the 56.1 Stmt. By letter dated October 3, 2002,
the DOL denied the request. See 56.1 Stmt. ¶ 2; 10/3/02 letter
from DOL to Barstow, Ex. 2 to the 56.1 Stmt.
On November 12, 2002, Barstow appealed the denial to the
Solicitor of Labor. See 56.1 Stmt. ¶ 3; 11/12/02 letter from
Barstow to Solicitor of Labor, Ex. C to the 56.1 Stmt. Eight
months later, on July 10, 2003, the DOL responded to Barstow's
appeal. The DOL informed Barstow that,
[T]he LWDII rate for each establishment is commercial
information that may be protected by Exemption 4 [of
FOIA]. As a result, OSHA is required to provide the
13,000 submitters with an opportunity to file
objection to disclosure before a final determination
can be made. Therefore, before we can take any
further action with regard to this matter we need to
know whether you wish to pursue it and if so, how you
wish to proceed. My office is willing to work with
you and OSHA to sample a reasonable number of random
establishments or to contact trade associations.
* * *
While we remain willing to work with you to attempt
to resolve your request, the Freedom of Information
Act provides for judicial review of administrative
decisions. Suit may be brought in the district court
of the United States in the jurisdiction in which the
complainant resides, has his principal place of
business, or in which the agency records are
maintained, or in the District of Columbia. 5 U.S.C. ¶ 552(a)(4)(B). However, should
you have any questions concerning this appeal
determination or wish to work with the Department to
sample establishments, you may contact Joe Plick of
my staff . . .
7/10/03 letter from DOL to Barstow, Ex. D to the 56.1
Thereafter, the Times filed this action against
the DOL, seeking to compel production of the LWDII rates for the
13,000 worksites that received OSHA notifications in 2002 as a
result of their rates.