July 28, 1997

MEMORANDUM FOR:     JOHN T. PHILLIPS, Regional Administrator
                   Region I

FROM:               JOHN B. MILES, JR, Director
                   Directorate of Compliance Programs

SUBJECT:            Cooperation in State or Local Criminal Prosecution

This memorandum is in response to your memorandum of February 19, regarding a State Attorney General Request for Case File Information for Criminal Prosecution.

You expressed three concerns: (1) releasing confidential (employee) statements, (2) releasing trade secrets, and (3) personal liability of the Disclosure Officer. Concern was also expressed about the impact certain disclosures will have on OSHA's relationship and trust with employees and employers, and a request was made for further guidance on what information should be withheld in order to protect OSHA's interests while at the same time, cooperating with other law enforcement agencies.

The memorandum of June 15, 1988, copy attached, from then Assistant Secretary John A. Pendergrass to the Regional Administrators concerning cooperation in State or local criminal prosecutions, is still in effect. This memorandum expands on the guidance given in that memorandum.

(1) Releasing confidential (employee) statements: You stated that much of the information which the compliance officer (CSHO) gathers during an inspection, particularly during interviews, from employees is implied to be confidential between them and OSHA, and that this impression of confidence is given whether or not the information is contained in a signed statement. You state that your concern is that if OSHA releases this information to the Attorney General's office, the Agency is setting a precedent that there is no such thing as confidentially which is either implied or specifically stated, as it relates to content, employee name, position, etc.

It has long been OSHA's policy to cooperate with local law enforcement officials in State or local prosecutions to the fullest extent appropriate. OSHA's policy with regard to the confidentiality of statements given to compliance officers during an inspection is stated in the Field Inspection Reference Manual (FIRM) on page II-16, paragraph A.4.e.(5)(a). That paragraph, in part, states: "The CSHO shall assure the individual that the statement will be held confidential to the extent allowed by law, but they may be used in court/hearings."

The notice paragraph, which appears on OSHA's statement Form 181A, also notifies the person giving the statement of the limits of the Agency's confidentiality. It reads as follows:

I understand that this statement will be held in confidence until such time as I may be called to testify in a court proceeding, at which-time it may be produced upon demand of opposing counsel. Additionally, this statement may be made available to other agencies if it will assist them in the performance of their statutory functions. Upon the closing of this case, this statement may be subject to disclosure only in accordance with applicable statute(s) and agency policy.

Since most statements that OSHA compliance officers obtain are oral, the information in the above paragraph should be conveyed to the interviewee. It should be noted that the names, telephone numbers, and even addresses of those making confidential statements to OSHA may not be protected if released to law enforcement agencies.

No law requires OSHA to protect these statements, and if released to law enforcement agencies, OSHA cannot really protect them. Case law backs the Agency up in these releases, and there is no personal liability of the Disclosure Officer under this situation.

Although it has long been OSHA's policy to protect interview statements as much as possible, compliance officers should clearly advise interviewees of the possibility of disclosure if there is reason to believe criminal prosecution or other law enforcement action may occur in a particular case.

(2) Trade Secrets. With regard to trade secrets you state that the employer has provided information to OSHA, which the employer has indicated is a trade secret with the understanding that it will not be released.

It is not only Agency policy, but it is also the law that trade secret information will not be released. Under Section 15 of the OSH Act, all information reported to or obtained by a compliance officer in connection with any inspection or other activity which contains or which might reveal a trade secret shall be kept confidential. Such information shall not be disclosed except to other OSHA officials concerned with the enforcement of the Act or, when relevant, in any proceeding under the Act.

When the employer identifies an operation or condition as a trade secret, it shall be treated as such. Information so obtained, including all negatives, photographs, videotapes, and OSHA documentation forms, must be labeled:

(3) Personal liability of Disclosure Officer. You state that the Disclosure Officer is concerned about personal liability if he releases confidential employee statements or trade secret information to the criminal prosecuting authorities and the statements or information becomes public during the criminal hearing.

Title 18 of the United States Code, Section 1905, which is referenced in Section 15 of the OSH Act, provides criminal penalties for Federal employees who disclose confidential information pertaining to a trade secret. These penalties include fines of up to $1,000 or imprisonment of up to one year, or both, and removal from office or employment.

While there is personal liability if trade secret information is disclosure, there is no personal liability if employee/witness statements are released.

OSHA continues to support all efforts to encourage occupational safety and health and to this end will cooperate in State or local prosecutions to the fullest extent appropriate. The Agency may cooperate with any state Attorney General request, but must be aware of the consequences of such cooperation.