Birdair, Inc.

Plain-English summary

Birdair subpoenaed the personal cellular-phone records of the OSHA compliance officer who investigated it. The Commission held that the informer's privilege protected the records because phone numbers, call frequency, and call duration could identify people who assisted OSHA and reveal how much information they supplied. The privilege was not limited to sources who accused Birdair of violations. Birdair also failed to show substantial need because it knew who was at the site and already had witness statements and a workers' compensation hearing transcript. The Commission vacated the judge's contrary discovery rulings and directed him to grant the Secretary's motion to revoke the subpoena.

Decision snapshot

• Cited standard(s): No substantive OSHA standard is at issue in this interlocutory discovery decision.
• Outcome: The orders requiring production of the compliance officer's phone records were vacated, and the judge was directed to grant the Secretary's motion to revoke the subpoena.
• Key point: The informer's privilege protects records that can indirectly identify anyone who assisted an OSHA investigation, unless the employer proves an essential need that cannot be met through other sources.

Full text (OSHRC public release)

Birdair, Inc., Docket No. 10-0838

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 10-0838

BIRDAIR, INC.,

Respondent.

APPEARANCES:

Tina D. Juarez and Mia F. Terrell, Attorneys; U.S. Department of Labor, Dallas, TX

For Complainant

Michael V. Abcarian and Isabel Andrade Crosby, Attorneys; Fisher & Phillips, L.L.P.,
Dallas, TX

For Respondent

ORDER

Before: ROGERS, Chairman; THOMPSON and ATTWOOD, Commissioners.

BY THE COMMISSION:

On February 3, 2011, Birdair Inc. (“Birdair”) served a subpoena on Cellco Partnership
d/b/a Verizon Wireless seeking the personal cellular phone records of the compliance officer
(“CO”) who investigated Birdair on behalf of the Occupational Safety and Health Administration
(“OSHA”). The Secretary filed a motion to revoke the subpoena on February 14, 2011, based on
the government informer’s privilege and the Privacy Act, and Birdair filed its response on
February 23, 2011. In both a February 25, 2011 conference call and a March 17, 2011 written
order, Administrative Law Judge James R. Rucker denied the Secretary’s motion and ordered the
Secretary to produce the phone records but, based on privacy considerations, granted her leave to
redact all references to phone calls unrelated to the investigation.

The Secretary petitioned the Commission for interlocutory review of the judge’s
rulings under 29 C.F.R. § 2200.73(a)(2), renewing her argument that the informer’s
privilege protects the CO’s phone records from disclosure. In its response to the
Secretary’s petition, Birdair argued that the informer’s privilege does not apply to the
phone records, but even if it did, Birdair’s substantial need for the records would overcome
the privilege. On April 1, 2011, the Commission granted the Secretary’s petition and
stayed the judge’s order pending resolution of the petition. For the following reasons, we
vacate the judge’s February 25, 2011 oral ruling and March 17, 2011 written order denying
the Secretary’s motion, and direct the judge to grant the Secretary’s motion.

Informer’s Privilege

The Commission has long recognized the applicability of an informer’s privilege in
its proceedings. Stephenson Enters., Inc. , 2 BNA OSHC 1080, 1082-83, 1973-1974 CCH
OSHD ¶ 18,277, p. 22,401-02 (No. 5873, 1974), aff’d , 578 F.2d 1021 (5th Cir. 1978). The
informer’s privilege is the government’s right “to withhold from disclosure the identity of
persons furnishing information on violations of the law to law-enforcement officers,”
including OSHA compliance officers. Donald Braasch Constr., Inc. , 17 BNA OSHC 2082,
2083, 1995-1997 CCH OSHD ¶ 31,259, p. 43,865 (No. 94-2615, 1997) (citation omitted).
The purpose of the privilege is to protect the identity of informers, and thus it protects a
communication to the extent that its contents would reveal the informer’s identity. Id.
Here, the Secretary relies on Commission precedent to assert the privilege, arguing that to
protect informers from retaliation the CO’s phone records must be protected because
phone numbers can easily be traced to identify the individual informers.

Based on our review of the parties’ arguments in light of applicable precedent, we
find that the judge erred in requiring the Secretary to release the CO’s phone records. The
Secretary may invoke the informer’s privilege to prevent disclosure of the identity of
individuals who assist in OSHA investigations. See Roviaro v. United States , 353 U.S. 53, 59
(1957); Donald Braasch , 17 BNA OSCH at 2083, 1995-1997 CCH OSHD at p. 43,865. In
this case, the Secretary has correctly asserted the privilege to protect all of the individuals,
other than Birdair supervisors, who assisted the CO in her investigation and to whom the
CO promised confidentiality. Contrary to Birdair’s contention, application of the
informer’s privilege is not limited to only those who asserted that Birdair had violated
OSHA requirements. Indeed, the circuit court decision on which Birdair relies to support
its claim specifically rejected the argument that the privilege is not so broad as to apply to
“person[s] who give[] information” and limited “only to those who give negative or
complaining information.” See Brock v. On Shore Quality Control Specialists , 811 F.2d 282,
283-84 (5th Cir. 1987) (“The same interests that militate against divulging the names of
‘informers’ militate equally against divulging the names of ‘those who have given
information,’ ” and “ ‘the purpose for allowing the informers privilege [—]to make
retaliation impossible’[—] . . . remains intact even where a list of informers is included
within a somewhat larger list containing some persons who spoke with the authorities but
who did not complain.” (citation omitted)).

Thus, Birdair’s suggested limitation would be inconsistent with the privilege’s
purpose. See Massman-Johnson (Luling) , 8 BNA OSHC 1369, 1371-72, 1980 CCH OSHD ¶
24,436, p. 29,804-05 (No. 76-1484, 1980), citing Quality Stamping Products Co. , 7 OSHC
1285, 1288, 1979 CCH OSHD ¶ 23,520, p. 28,504 (No. 78-235, 1979) (holding that
informer’s privilege is not limited to individuals “who actually instigate investigations or
act as confidential accusers in the criminal sense”). Indeed, the mere fact that an
individual “supplied information relevant to the investigation of alleged OSHA violations
makes the privilege applicable” because providing any information to the Secretary could
lead to the retaliation the privilege is intended to prevent. Massman-Johnson , 8 BNA
OSHC at 1373, 1980 CCH OSHD at p. 29,805. And we find that the phone records at issue
here contain additional information, including the frequency and duration of the CO’s
communications with specific individuals, that suggests how much information each
informer provided.

Therefore, we conclude that the Secretary has correctly asserted that the CO’s
phone records would reveal the identity of informers and that the informer’s privilege
protects those records from disclosure.

Substantial Need

Birdair argues that even if the informer’s privilege applies to the CO’s phone
records, it has established a “substantial need” for these records because the Secretary has
“methodically” used the privilege to hide the factual basis for the citations at issue and
Birdair can only determine the factual basis by identifying who provided the CO with the
relevant facts. See Donald Braasch , 17 BNA OSHC at 2085, 1995-1997 CCH OSHD at p.
43,869 (an employer can overcome the informer’s privilege by showing that (1) it has a
substantial need for the information that outweighs the government’s entitlement to the
privilege, and (2) the information is essential to the preparation of its case and it is unable
to obtain it by any other means). But Birdair has not shown that the CO’s phone records
are its only means of discovering the information to which it is entitled.

First, Birdair has not demonstrated that it is unable to independently determine the
names of all individuals who might have provided information to OSHA. Birdair admits
that it knows the CO spoke with most, if not all, of the Birdair and general contractor
employees who were at the site and Birdair knows the names of those individuals. Also, the
Secretary has informed Birdair of the identities of all persons with knowledge of relevant
facts of whom she is aware. Although Birdair asserts that it cannot verify that list, it would
appear to be in a superior position to know who was at the site. By interviewing those
individuals, Birdair would have access to the same sources of information as OSHA. The
expense of interviewing the individuals is not a factor in the balancing test that determines
whether Birdair can overcome the privilege, see Charles Martin , 459 F.3d at 307, and
potential witnesses who might be reluctant to consent to depositions or to testify at trial
would be subject to subpoena, see 29 C.F.R. § 2200.57.

Second, Birdair has not shown why obtaining the names of individuals who gave
information to OSHA is its exclusive means of obtaining information about the
circumstances relevant to the citations. Indeed, it has already been provided with (1)
statements from eyewitnesses to the accident taken by its insurance carrier; (2) statements
taken by the general contractor; and (3) the transcript from the workers’ compensation
hearing for its injured employees. Therefore, we find that Birdair has failed to make the
necessary showing to overcome the Secretary’s assertion of the informer’s privilege.

Accordingly, we vacate the judge’s February 25, 2011 oral ruling and March 17,
2011 order denying the Secretary’s Motion to Revoke Subpoena, and direct the judge to
grant the Secretary’s motion.

SO ORDERED.

/s/____ 

Thomasina V. Rogers

Chairman

/s/____ 

Horace A. Thompson III

Commissioner

/s/____

Cynthia L. Attwood

Dated:April 27, 2011                                     Commissioner

SECRETARY OF LABOR,

Complainant,

v.

BIRDAIR, INC.,

Respondent.

OSHRC Docket No.: 10-0838

ORDER

On February 25, 2011, the court conducted a conference call with the parties
to consider oral argument on Respondent’s Motion to Compel , Complainant’s
Objection and Response to Respondent’s Motion to Compel Discovery from
Complainant , Complainant’s Motion to Revoke Subpoena , and Respondent’s Response
to Motion to Revoke Subpoena . With regard to Complainant’s Motion to Revoke
Subpoena , the motion is GRANTED in part and DENIED in part as follows:

Respondent’s subpoena duces tecum to Cellco Partnership d/b/a Verizon
Wireless is overly broad in temporal scope. The court hereby reduces the breadth of
the subpoena to calls made or received between the date of the accident giving rise to
the subject OSHA inspection (December 3, 2009) and the date Complainant was
granted leave to amend its citation (February 11, 2011). Subject to this
modification, Complainant is ORDERED to produce the requested telephone
records to Respondent but is GRANTED LEAVE to redact all telephone call
references which do not relate to the subject inspection. The parties are further
directed to work together in good faith to resolve the logistics of whether the records
will be produced directly from Cellco Partnership d/b/a Verizon Wireless or
obtained by CSHO Rodriguez, as well as any cost issues related to obtaining the
records.

SO ORDERED.                                         /s/

JAMES R. RUCKER, Jr.

Judge, OSHRC

Date: March 17, 2011