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NEW YORK TIMES COMPANY v. UNITED STATES DEPARTMENT OF LABOR

July 29, 2004.

THE NEW YORK TIMES COMPANY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF LABOR, Defendant.



The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

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.

  I. FACTUAL BACKGROUND

  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 following formula:
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.").

  B. The Times Request

  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 Stmt.*fn3 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.

  II. EXHAUSTION OF ...


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