September 27, 2004

Mr. Michael T. Hager
Welby, Brady & Greenblatt, LLP
Attorneys At Law
Westchester Financial Center
11 Martine Avenue
White Plains, NY 10606

Dear Mr. Hager:

This is in further response to your letter of March 22, 2004, regarding your concerns about the information contained on the Occupational Safety and Health Administration's (OSHA's) web site on News Releases, settlement agreements, citations, and proposed penalties. This letter constitutes OSHA's interpretation only of the facts discussed and may not be applicable to any questions not delineated within your original correspondence. We apologize for the delay in responding.

You are correct, OSHA posts on its web site citations and proposed penalties for inspections conducted since the beginning of OSHA. In addition, OSHA News Releases for the current administration are available, by year, through a table of contents on the OSHA web site, and News Releases from previous administrations (back to 1994) are available in the site archive at www.osha.gov/archive/index.html. These News Releases can also be obtained by selecting "About OSHA" on the OSHA Home Page, www.osha.gov, and then selecting "OSHA History." The archive can be searched by year or keyword in the title or document.

Request: You ask that OSHA amend its policy of posting such material which is more than 10 years old since you believe that such material is irrelevant and has no relationship to the public's health and safety. You point out that bidders on public contracts usually only have to declare OSHA citations and similar violations which date back five years or less.

Response: The information that OSHA publishes on its Internet site regarding citations, proposed penalties and news releases is that which would be available to the public under the Freedom of Information Act (FOIA). OSHA's inclusion of this material on the web site is consistent with the spirit of the Electronic Freedom of Information Act Amendments of 1996 (see Pub. L. No. 104-231, 110 Stat. 3048). We would also note that this information is not provided specifically for bidders on public contracts or for any other group; the public may have many uses for this information.

In support of your request, you refer to a restriction on OSHA's use of violations more than three years old when classifying a violation as repeat. Contrary to your suggestion, the limitation you mention is not in the OSH Act but is a general administrative enforcement policy.

Question: Are all settlement agreements entered into by OSHA and employers posted to the web site, or can an employer request that its settlement agreement be kept confidential?

Response: Currently, the settlement agreements on the OSHA web site are major agreements the Agency has entered into and are public information. However, the vast majority of settlement agreements between OSHA and employers are not put on the web site. They would, however, still be subject to disclosure pursuant to the provisions of the FOIA. In addition, the rules of the Occupational Safety and Health Review Commission at 29 CFR §2200.100(c) provide that settlement agreements shall be posted in the same manner that employers are required to post citations and notices of contest.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. 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 web site at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.

Sincerely,


Richard E. Fairfax, Director
Directorate of Enforcement Programs