Some personal identifiers have been redacted for privacy purposes.

 United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 21-0606 

KROESCHELL ENGINEERING CO., INC., 

Respondent. 

ORDER ON MOTION FOR PROTECTIVE ORDER

The underlying citation alleges 12 violations of the permit-required confined spaces 

standard, 20 C.F.R. § 1910.146, alleged to have occurred in early December 2020 at the Captain 

James A. Lovell Federal Health Care Center in North Chicago, which is Veterans Administration

(VA) facility. 

The Secretary has filed a motion for a protective order dated March 4, 2022 seeking to 

prohibit testimony affecting the Secretary’s claimed informer’s privilege and law enforcement 

privilege in the deposition of [redacted] that is scheduled for 2:00 p.m. Central Time on March 10, 

2022. The Respondent, Kroeschell Engineering Co., Inc., filed a response dated March 8, 2022. 

[redacted] is not a current or former employee of the Respondent. The papers of record 

indicate that at the time of the inspection [redacted] was a VA employee at the subject North 

Chicago facility with the title Occupational Health Safety Specialist, but that he is now retired 

from the VA. 
2 

Papers of record also reflect that OSHA had issued to the VA a “Notice of Unsafe of 

Unhealthful Working Conditions” pursuant to 29 C.F.R. pt. 1960 and Executive Order 12196 that 

alleged eleven violations of the permit-required confined spaces standard arising out of the same 

events and conditions that gave rise to the citation issued to the Respondent. 

In opposing the motion, the Respondent has filed an affidavit of [redacted] dated March 7, 

2022 which states in part as follows: “I now and forever hereby waive and release the informer's 

privilege for the above titled proceedings and for all relevant and material matters. I intend that 

this waiver and release be applicable to all proceedings related to the above titled case.” The 

affidavit does not expressly state whether [redacted] did, or did not, provide information to the 

government in its underlying investigation in this matter. In other words, the affidavit at face value

does not establish whether [redacted] has “informer” status.

On March 9, 2022 the undersigned conducted a telephone conference with counsel 

regarding the motion, at the conclusion of which the undersigned described the contours of the 

following ruling. This order formalizes that oral ruling. To the extent the terms of this order differ 

from the oral ruling, this order supersedes that oral ruling and is controlling. 

Discussion

Law Enforcement Privilege

The Secretary’s motion for “a protective order prohibiting Respondent from inquiring into 

... matters that would implicate OSHA’s internal law enforcement techniques and procedures” 

during the deposition of [redacted] is DENIED. The record on the motion does not reflect that 

[redacted] has personal knowledge of any such “internal law enforcement techniques or 

procedures,” nor does it demonstrate that any personal knowledge of such that he may have would 

be subject to protection by any cognizable law enforcement privilege.
3 

Informer’s Privilege

The Secretary’s motion for a protective order “prohibiting Respondent from inquiring into

... whether ... [redacted] did or did not communicate with OSHA during OSHA’s inspection of 

the instant matter or any related matters,” is provisionally GRANTED, but would be DENIED if

[redacted] states on the record at the outset of his deposition that he understands the protections 

afforded to persons identified as informers in Commission proceedings and states that he wishes 

voluntarily to waive the protections that the informer’s privilege accords to individuals. 

Accordingly, after [redacted] is sworn at his deposition on March 10, 2022 but before he 

responds to any substantive questioning, counsel for the Secretary is instructed to read the 

following to him (excluding the footnotes) and elicit responses to the questions indicated: 

The informer's privilege belongs to the government. The informer’s privilege does 

not belong to an individual informant. In proceedings before the Occupational 

Safety and Health Review Commission such as this one, the informer’s privilege 

permits the government to withhold from disclosure the identity of persons who 

have furnished information to OSHA officials on violations of Occupational Safety 

and Health Act.

1

 

The informer’s privilege is applicable by the mere fact that an individual has 

supplied information relevant to the investigation of alleged OSHA violations.

2

 

The informer’s privilege is not limited to only those individuals who have given 

negative or complaining information.3 

The informer’s privilege recognizes the obligation of citizens to cooperate in the 

enforcement of the law and encourages the fulfillment of that obligation by 

preserving the anonymity of the person supplying the information.

4

 In Commission 

proceedings, another purpose of the informer’s privilege is to protect employees 

1 Donald Braasch Constr., Inc., 17 BNA OSHC 2082, 2083 (No. 94-2615, 1997). 

2 Birdair, Inc., 23 BNA OSHC 1493 (No. 10-0838, 2011). 

3 Id.

4 Roviaro v. United States, 353 U.S. 53, 59 (1957); Quality Stamping Products, Co., 7 

BNA OSHC 1285 (No. 78–235, 1979). 
4 

from retribution by their employers.5

 But even so, the informer’s privilege applies

to persons who are not employed by an employer that has been investigated or cited 

for an OSHA violation. 6 And the informer’s privilege applies even when it may 

seem obvious that a particular individual has given information to OHSA officials.

7

 

Even though the informer’s privilege belongs to the government, an individual may 

waive the protections of anonymity and confidentiality that the government’s 

informer’s privilege affords an individual, but only if the individual voluntarily 

chooses to disclose whether they provided information to the government.8 An

individual who voluntarily chooses to disclose that they have provided information 

to the government may also voluntarily choose to disclose, or choose not to 

disclose, what information they provided to the government.

9

 In other words, an 

individual may choose to waive only the protection of anonymity, or may choose 

to waive both the protections of anonymity and confidentiality.10

QUESTIONS: 

Do you understand the protections of anonymity and confidentiality

that an individual may have under the government’s informer’s 

privilege? 

Do you have any questions about the protections that may be 

afforded an individual under the government’s informer’s privilege? 

Responses: [Note to counsel: If [redacted] responds that he 

does not fully understand, then counsel for the Secretary 

should re-read the instruction and inquire again. If after a 

second reading [redacted] indicates that he does not fully 

understand, or if he responds that he has questions, then 

counsel for the Secretary is instructed to contact the 

5 Quality Stamping Products, at 1288. 

6 Donald Braasch, 17 BNA OSHC at 2082 n. 4.

7 Id. at 2084.

8 Massman–Johnson (Luling), 8 BNA OSHC 1369, 1371 (No. 76–1484, 1980).

9 Id. Even though the informer’s privilege entitles the government to withhold the content 

of an informer’s statement to the extent that it would reveal the identity of the informant, the 

Commission’s decision in Massman-Johnson strongly suggests that an individual who has 

voluntarily disclosed their informer status does not concomitantly voluntarily waive the right of 

confidentiality in the substance of their communication to the government.

10 Id. 
5 

undersigned, who will then join the remote deposition to 

address on the record questions that [redacted] may have, and 

if appropriate amend the ruling on this order.]

QUESTIONS: 

In responding to questions during this deposition, do you voluntarily 

wish to disclose whether you provided information to the 

government? 

If you do choose voluntarily to disclose that you provided 

information to the government, do wish also to disclose what that 

information was? 

Responses: [Note to counsel: If [redacted] provides other 

than clear affirmative or negative response(s), counsel for the 

Secretary is instructed to contact the undersigned, who would 

then join the remote deposition on the record.]

As discussed during the telephone conference, the undersigned will be available during the 

deposition on March 10, 2022 to address any issues or objections that relate to application of the 

government’s informer’s privilege that the parties are not successful in satisfactorily addressing 

without the undersigned’s immediate involvement during the deposition. The parties should note 

that any potential objection “to the competence, relevance, or materiality of testimony ... is not 

waived by failure to make an objection before or during the deposition, unless the ground for it 

might have been corrected at that time.” Fed. R. Civ. P. 32(d)(3)(A). 

SO ORDERED.

 /s/ William S. Coleman 

 WILLIAM S. COLEMAN

Administrative Law Judge 

DATED: March 10, 2022