Workplace Violence Investigations

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

On behalf of Sur Legal, a 501(c)(3) non-profit organization and member of the media for FOIA purposes (see: https://www.surlegal.org/), I hereby request:

1. All records of cases referred to OSHA Region IV since January 1, 2017, involving a fatality (Type 3 - workplace violence) of a worker in which the fatality is believed to have been caused by another worker, AND in which OSHA did NOT open a Section 5(a)(1) investigation.

One example of such failure to open a worker-on-worker violence investigation is the Mar-Jac Poultry complaint from its Hattiesburg, Mississippi plant. The OSHA inspection number was 1507212.015, opened December 17, 2020. A citation regarding the air pressure gun used by one worker to kill the decedent worker was issued by OSHA in this case. See: https://www.osha.gov/pls/imis/establishment.inspections_detail?id=1507212.015. HOWEVER no 5(a)(1) Investigation was opened by OSHA.

These records are believed to be housed within the offices and records described in OSHA’s 2017 Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence: https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-01-058.pdf.

2. All records of communication to or from employers or businesses whose workplaces were subject to a Type 3 - Workplace Violence report between January 1, 2017, and the present.

Because these records involve both the loss of substantial due process rights by the surviving family members of deceased workers, and by workers who remain in situations of workplace violence that goes unaddressed by OSHA investigators, because there exists a substantial doubt about as to whether OSHA is discharging its obligations under federal law consistent with its own internal policy guidance and the statute.

Please contact me at Andrew@detentionkills.org and cc Sur Legal E.D. Shelly Anand Shelly@surlegal.org with any questions.

Best regards,

Andrew Free

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Andrew Free

Good morning:

I am following up through MuckRock on the email we received from rehearsal FOIA Office June 20, 2022, from the Asst. Regional Administrator for Enforcement Programs.

The OSHA email is below, followed by this morning’s response.

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Good morning –

This email is to acknowledge to your Freedom of Information Act (FOIA) request received in our office on May 30, 2022 and assigned FOIA tracking number 2022-F-09759. You requested the following:

All records of cases referred to OSHA Region IV since January 1, 2017, involving a fatality (Type 3 - workplace violence) of a worker in which the fatality is to believed to have been caused by another worker, AND in which OSHA did NOT open a Section 5a1 investigation.
All records of communication to/from employers or businesses whose workplaces were subject to a Type 3 - Workplace Violence report between January 1, 20217 and present.

Additionally, we are tolling (stopping the time clock on the statutory processing time limits) your request. We are taking this action because we need clarification to assist us in determining the types of records that are of interest to you. OSHA does not have a 5(a)(1) investigation classification to search by, and we are unable to only search for communication to/from employers on this topic. We can conduct a search conduct a search of inspections conducted in response to workplace violence, as well as complaints and referrals. We can also identify workplace violence inspections where a 5a1 violation was issued.

You have been categorized as an “Other” requester; therefore you will only be charged for search fees. At this time, you have not agreed to pay the costs associated with processing your request. We estimate that it will cost approximately $100 ($10 per quarter hour). Please confirm in writing that you are willing to pay all fees.

We will restart the processing time clock once you have provided the requested information. If we do not receive a response by July 8, 2022, we will close your request.

If you have any questions regarding your request, please contact me at OSHA-Region-IV@dol.gov.

Sincerely,

Christi Griffin
Assistant Regional Administrator
for Enforcement Programs

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Requestor response:

Good morning, Ms. Griffin,

Thank you for your message regarding this request.

1. Tolling, Timing, and Fees
Your question regarding fees is an easy one to resolve: The agency is not entitled to charge this requestor fees because the FOIA office failed to respond within the statutory timeframes provided by the Act.

Sur Legal filed the FOIA on May 16, 2022, not May 30, 2022, as your email indicates. https://www.muckrock.com/foi/united-states-of-america-10/workplace-violence-investigations-128926/. Accordingly, the agency’s deadline for acknowledging the request and assigning it an individualized tracking number ran on May 30, 2022. DOL provided no response before that day.

Even assuming the agency got the request on May 30, as indicated in your email, it was under a statutory obligation to acknowledge and assign an individualized tracking number no later than June 13, 2022—ten working days after receipt. Acknowledging a request outside the 10-day limit and responding outside the 20-day, as the agency did here, disqualifies the agency from collecting fees.

Please confirm the agency understands this request is fee-exempt under the statute.

2. Search Terms
We will respond to the rest of your email regarding search tasking before July 8.

However, we specifically object to and will appeal an administrative closure by OSHA if we haven’t reached agreement by that date, as there is no authority in the FOIA or DOL’s regulations to treat what is in all material respects a denial as a “closure”, and then deprive the requester of all the rights associated with the denial.

We’ll be in touch soon. In the meantime, please confirm the fee exempt status of this request.

Thank you,

Andrew