SAN FRANCISCO (CN) — In a dispute over the withholding of workplace safety records, a federal judge on Monday called Amazon’s practice of marking as “confidential” government-mandated logs of injuries and illnesses at its warehouses potentially disturbing.
U.S. Magistrate Judge Sallie Kim made those comments during a hearing on dueling motions for summary judgment in a lawsuit filed by the Center for Investigative Reporting against the U.S. Department of Labor.
The center sued in September 2019 after the department’s Occupational Safety and Health Administration refused to turn over workplace safety records for Amazon warehouses in Massachusetts, Ohio and Illinois.
After the suit was filed, the department released employee statements provided to OSHA investigators for Amazon’s Stoughton, Massachusetts warehouse and a few pages of heavily redacted Form 300As, logs of workplace injuries and illnesses, for warehouses in Ohio and Illinois. The center is challenging the redactions and withholding of injury logs, which the government says are necessary to protect confidential business information.
Arguing in Kim’s virtual courtroom Monday, U.S. Department of Labor attorney Pamela Johann said although the department has previously disclosed workplace injury logs, it changed its policy after the U.S. Supreme Court issued its June 2019 decision in Food Marketing Institute v. Argus Leader Media. In that 6-3 decision, the court found disclosure of food stamp spending data at specific stores could financially harm retailers.
Because Amazon believed the injury logs would remain confidential, Johann insisted the data falls within Exemption 4 of the Freedom of Information Act, which exempts sensitive business information from disclosure.
Amazon’s vice president of workplace health and safety, Heather McDougall, told the court in a written statement that Amazon considers the information to be commercially sensitive. Injury statistics can affect the company’s insurance rates, and the data guides decisions on where it allocates resources to reduce injuries and illnesses.
The injury reporting rule, which has since been partly rescinded by the Trump administration, also required workplace injury logs be released to current and former employees upon request. It further mandated that employers post the logs in workplaces where employees can see them for three months each year.
Judge Kim asked if an Amazon employee who receives that information is allowed to disclose it.
Johann answered, “Yes, but when Amazon provides that information, it provides it with an explicit warning that the information is confidential.”
Kim voiced discomfort with the idea of Amazon marking documents “confidential” when the law requires they be disclosed.
“That’s disturbing if it’s not confidential under the law,” Kim said.
Johann retorted that the data is meant to be used by companies for health and safety purposes, not for disclosure to the general public.
“The regulation did not contemplate that it would be publicly disseminated,” Johann said. “It did not contemplate that an employee would use it for anything other than an employee’s own personal use.”
Representing the Center for Investigative Reporting, attorney Diana Baranetsky argued that no such ban on public disclosure exists in the regulation. The rule includes no fines or sanctions for employees who disclose the information, she said.
She further insisted that the government has failed to meet the legal standard for showing the data is confidential business information exempt from disclosure. No financial information is contained in the logs, she argued.
“There are no costs on these records,” Baranetsky said. “The data is very limited.”
Judge Kim also asked the government to opine on the significance of a recent ruling by U.S. Magistrate Judge Donna Ryu in Oakland, who found the Labor Department could not withhold workplace injury logs because the department explicitly warned companies in 2016 that it intended to post the data on a publicly accessible website.
The department argued that it changed its position in November 2017 before the next round of workplace injury logs were submitted. Ryu concluded that because the department failed to make its position public until June 2018 after the logs were submitted, the employers had no expectation of privacy.
Kim said she disagreed with the department’s position that Ryu’s ruling still permits the withholding of workplace injury data in certain circumstances.
“The main thrust of her opinion was that there could be no confidentiality requirement when employers are told the information could be published,” Kim said.
After 30 minutes of debate, Kim took the arguments under submission.
In January 2019, the Labor Department published a final rule rescinding requirements that companies submit annual reports on workplace injuries and illnesses.
Three public health advocacy groups and six states — Illinois, Maryland, Massachusetts, Minnesota, New Jersey, and New York — filed two separate lawsuits against the rollback last year. Both lawsuits are still pending in the District of Columbia federal court.