OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
March 5, 1992
MEMORANDUM FOR: MICHAEL G. CONNORS REGIONAL ADMINISTRATOR FROM: PATRICIA K. CLARK, DIRECTOR DIRECTORATE OF COMPLIANCE PROGRAMS SUBJECT: Interpretation on Freedom of Information Act (FOIA) Policy--Criminal-Willful Case
This is in response to your memorandum of January 7, Subject: Criminal Willful Cases, which referred to a memorandum dated December 30, 1991, on "Updating Procedures for Criminal Willful Cases." You requested a clear statement of FOIA policy regarding documents requested to update procedures for criminal-willful cases to be made part of a case file that would not be disclosable under the FOIA, exemptions 5 and 7.
Under the FOIA, if a case is open, Exemption 7(A) can be used to protect all the information requested. Once the case is closed, other exemptions may be applicable as follows:
Exemption 5 can be used to protect predecisional opinions and recommendations. However, if the document is post-decisional, and explains the reasons for the decision, then this privilege does not apply.
Exemption 7 will still protect witness identities and other private information about witnesses under Exemptions 7(C) and 7(D). In addition, since the investigation is a criminal-willful, even information provided by a source which is not source identifying can also be protected.
Exemptions 7(E) and 2 can be used to protect information which, if released, could allow someone to circumvent the law. Therefore, if releasing the criteria (as outlined in the OSHA Field Operations Manual), which was used to judge whether a violation was criminal-willful, would allow someone to use that information to circumvent the law, it can be protected. Likewise, if the information provided from a Regional Office shows how they are interpreting the criteria, such that someone could use that information to avoid a criminal-willful citation, then that information can be protected.
A particular disclosure danger would be the ability of adverse parties to gain insight into OSHA's general strategic and tactical approach to deciding when an inspection results in a criminal-willful case. Therefore, information contained in a case file, such as opinions, conclusions, and recommendations written by Federal personnel in evaluating a Federal criminal-willful case, or a decision not to cite criminal, are "For Internal Use Only", in which case the information shall not be disclosed.
These interpretations are provided from the FOIA Disclosure Officer, Directorate of Compliance Programs, in cooperation with Miriam Miller, Co-Counsel for Administrative Law, and Joseph Plick, Staff Attorney, FOIA Unit, Department of Labor.