1 

 

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. 18-1840 

JTF CONSTRUCTION, INC., 

 Respondent. 

 

ORDER REGARDING RESPONDENT’S 

MOTION TO COMPEL 

This matter is before the Occupational Safety and Health Review Commission (the 

Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 651 et seq. (the Act). 

Respondent filed a Motion for an order compelling the Secretary to produce

“appropriately-redacted witness statements and other information in their entirety that the 

Secretary has in OSHA’s investigatory file,” under Commission Rules 52(f) and 53, Federal Rules 

of Civil Procedure 26 and 37, and the Freedom of Information Act (FOIA)1 (Resp. Motion).2 Resp. 

1 Respondent filed a Reply in further support of its Motion to compel. In its Reply, Respondent 

states that it is not seeking the witness statements withheld from document production by the 

Secretary pursuant to FOIA. Resp. Reply p. 1.n.1. 

2

 With the Motion, Respondent filed a supporting Memorandum (Resp. Memo) and five Exhibits. 

Exhibit A is Respondent’s February 4, 2019 First Set of Interrogatories and Requests for 

Production of Documents to Complainant; and Complainant’s March 5, 2019 Answers, 

Objections, and Responses to Respondent’s First Set of Interrogatories and Requests for 

Production of Documents to Complainant. Exhibit B includes several completely redacted pages, 

Bates numbered as follows: pages entitled Note Take Sheet SECDOL 248-249; pages following 

and entitled Employee Interview Statement SECDOL 250-251, 252-253, 254-255; pages entitled 

Employee On-Site Information SECDOL 257-259. Exhibit C includes Mr. Marta’s letter to Mr. 

Vance dated May 23, 2019. Exhibit D includes Mr. Marta’s letter to Mr. Vance dated June 7, 2019. 

Exhibit E is the May 14, 2019 deposition transcript of CSHO Guillermo (Gil) Venegas. 
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Motion p. 1. Respondent contends the Secretary’s redactions pursuant to the government 

informer’s privilege are inappropriate and overbroad, as the redactions include non-identifying 

information. Resp. Memo pp. 3-5. 

Respondent filed a Reply in further support of its Motion to compel discovery3 (Resp. 

Reply). Respondent emphasizes that it seeks only the non-identifying content of the witness 

statements gathered by OSHA during the investigation, with witness identifying information 

appropriately redacted. Resp. Reply pp. 1-4. Because of the relief requested, Respondent’s 

Motion is regarded as a Motion to compel pursuant to Commission Rule 52(d) Privilege.

4

 

Complainant, the Secretary of Labor (Secretary), filed an Objection to Respondent’s 

Motion (Sec’y Objection). The Secretary asserts that the government informer’s privilege was 

properly invoked by the Secretary to protect the confidentiality of non-supervisory employee 

statements provided to OSHA during the inspection. The Secretary asserts that the privilege 

protects the identities of the individuals who provided information to OSHA and also the contents 

of their communications with OSHA. Sec’y Objection pp. 2-3. The Secretary contends that 

Respondent has not shown that Respondent’s need for the privileged information outweighs the 

government’s interest in invoking the privilege and withholding the identity of the informants and 

the informants’ privileged communications. Sec’y Objection pp. 3-4. The Secretary also filed a 

Sur-reply in further opposition to Respondent’s Motion to compel. 

As stated below, the Secretary is ordered to properly invoke the government informer’s 

privilege; provide a detailed privilege log, in support of the Secretary’s government informer’s 

3 With the Reply, Respondent filed two Exhibits. Exhibit A is a copy of the Commission decision 

in Quality Stamping Products Co., OSHRC Docket No. 78-235 (1979), also found at 7 BNA 

OHRC 1285. Exhibit B is a copy of Complainant’s March 5, 2019 Answers, previously submitted 

as part of Resp. Motion Exh. A. 

4 On June 10, 2019, revised Commission Rules became effective. All references contained herein 

refer to these revised Rules. 

OSHRC Rules of Procedure (Revised), Final Rule, 84 Fed. Reg. 14554 (April 10, 2019) (to be 

codified at 29 C.F.R. pt. 2200) (https://www.federalregister.gov/documents/2019/04/10/2019-

06581/rules-of-procedure) 
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privilege claim; and complete a review the OSHA inspection file to ascertain if any additional 

information may be disclosed to Respondent (un-redacted), without compromising the government 

informer’s privilege. 

Issue

Has the Secretary properly invoked the government informer’s privilege in this case to 

withhold from disclosure the identities of individuals who provided information to OSHA and also 

the contents of their communications with OSHA? 

Pleadings 

The OSHA Cincinnati, Ohio Area Office conducted an inspection of Respondent’s job site, 

located in West Chester, Ohio, between July 31, 2018 and October 19, 2018. On October 31, 

2018, OSHA issued to Respondent a nine-item serious citation and notification of penalty 

(citation). The total proposed penalty is $ 89,246.00. The citation alleges a violation of OSHA 

construction and demolition standards as follows. 

Citation 1, item 1 alleges a serious violation of § 1926.20(b)(2) regarding frequent and 

regular inspections of job sites, materials, and equipment by a competent person at a commercial 

demolition site. Citation 1, item 2 alleges a serious violation of § 1926.21(b)(2) regarding the 

instruction of employees in the recognition and avoidance of unsafe conditions and the regulations 

applicable to their work environment to control or eliminate any hazards or other exposure to 

illness or injury while performing demolition work at the jobsite. Citation 1, item 3 alleges a 

serious violation of § 1926.454(b) regarding the training requirements for employees operating a 

Genie SX-150 extendable boom lift, to be conducted by a competent person to recognize hazards 

associated with the work. Citation 1, item 4 alleges a serious violation of § 1926.501(b)(1) 

regarding the employer’s duty to provide fall protection for each employee on a walking / working 

surface with an unprotected side or edge which is 6 feet or more above a lower level. Citation 1, 

item 5 alleges a serious violation of § 1926.501(b)(4)(ii) regarding the employer’s duty to provide 

fall protection for each employee on a walking / working surface from tripping in or stepping into 

or through holes by covers. Citation 1, item 6 alleges a serious violation of §1926.850(g), during 

demolition operations, where a hazard exists to employees falling through wall openings, the 
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opening shall be protected to a height of approximately 42 inches. Citation 1, item 7 alleges a 

serious violation of § 1926.851(b), during demolition operations, all stairs, passageways, ladders 

and incidental equipment thereto, covered by this section, shall be periodically inspected and 

maintained in a clean safe condition. Citation 1, item 8, alleges a serious violation of § 1052(a)(3) 

regarding employees gaining access to elevated work areas for the purpose of demolition allegedly 

exposed to trip and fall hazards as stair treads were damaged and not uniform within each flight of 

stairs. Citation 1, item 9 alleges a serious violation of § 1926.1052(c)(12) regarding employees 

gaining access to elevated work areas, for the purpose of demolition, allegedly exposed to fall 

hazards while using fixed exterior stairs for which the stairway top landing did not have a guardrail 

system. 

Respondent filed a notice of contest bringing this case before the Commission. The 

Secretary filed a complaint on January 9, 2019, incorporating the citation. Complaint ¶ V. 

Respondent filed an answer and affirmative defenses on January 27, 2019. Respondent’s answer 

denied violating the Act as alleged in the citation and denied the appropriateness of the 

classification, proposed penalties, and abatement date. The answer raised several affirmative 

defenses, including no hazard existed, unpreventable employee misconduct, and no knowledge of 

the practices or noncompliance alleged. 

On July 11, 2019, Respondent filed a Motion for leave to file a first amended answer to 

add the additional and alternative defense of the actions or omission of a rogue supervisor. On 

July 17, 2019, during a conference call with Counsel for the Secretary Marta and Respondent 

Counsel Vance, Mr. Marta stated that as the prehearing depositions in this case will proceed 

forward, as set forth in the Order granting the Secretary’s Motion to take depositions issued today, 

the Secretary did not object to Respondent’s Motion to file a first amended answer. During the 

call, the parties were advised that Respondent’s unopposed Motion to file a first amended answer 

was Granted. 

Respondent’s Motion to Compel 

Respondent, in its Motion and Reply in further support, broadly requests an order that the 

Secretary produce to Respondent the appropriately redacted OSHA investigative file. The focus 

of Respondent’s Motion to compel is the Secretary’s Response and Objection to Respondent’s 
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Document Request no. 10. See Resp. Memo p. 2; Exh. A. The Secretary’s Objection to 

Respondent’s Document Request no. 10 states: 

Any and all statements, affidavits and / or any other documents which in any way relate to 

an interview with any of JTF’s non-managerial or non-supervisory employees are protected 

from disclosure during the discovery phase of this action by the government informer’s

privilege. On that basis, no such document that might be in the Secretary’s possession, 

custody, or control will be produced to JTF. 

Respondent notes that in response to Respondent’s Document Request no. 10, the Secretary 

“redacted the subject witness statements in their entirety.” Resp. Memo p. 2; Exh. B. Respondent 

contends that the Secretary’s redactions pursuant to the government informer’s privilege are 

inappropriate and overbroad, as the redactions include non-identifying information. Respondent 

contends that the government informer’s privilege protects the identify of the informer, not the 

information provided by the informant. Respondent asserts that “it is inconceivable that every 

word and letter of the witnesses’ statements contain personal-identifying information.” Resp. 

Memo p. 4; pp. 3-5; Resp. Reply pp. 1-4, n.2. 

By redacting the subject witness statements in their entirety, the Secretary appears to take 

the position that each and every word of the statements constitutes “identifying 

information” of the person making the statement. Such a position is nonsensical given the 

statements most certainly contain words such as: “a”; “and”; “an”; “of”; “the”; “I”; “me”; 

“JTF”; etc., which in no way identify the witness, but which nevertheless remain redacted.

Resp. Memo p. 3. 

Respondent requests an order compelling the Secretary to produce appropriately redacted 

witness statements and other information in the OSHA investigative file, in their entirety. It is 

Respondent’s contention that the identifying information that may be appropriately redacted 

pursuant to the government informant’s privilege is very limited. 

Here, the Secretary must redact personal-identifying information from the requested 

statements (such as names, ages, birthdates, social security numbers, length of tenure with 

the company, title at the company, phone numbers, etc.), and produce the remaining 

substance of the statement to JTF.

Respondent Memo p. 5. 

Respondent also asserts that the government informant’s privilege only protects 

confidential informants. In this case, Respondent contends that “[c]onfidentiality is a moot point,” 
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as Respondent management and ownership already know the identifies of the witnesses 

interviewed by the OSHA Compliance Officer. Resp. Memo pp. 3-4. 

Respondent contends that without receipt from the Secretary of the appropriately redacted 

OSHA investigative file, including properly redacted witness statements, Respondent cannot 

prepare for additional depositions or trial, including cross-examination of the OSHA Compliance 

Officer and other witnesses, and Respondent cannot fully develop its defenses. Resp. Memo p. 2. 

In its Objection, the Secretary asserts that in this case the government informer’s privilege 

was properly invoked by the Secretary to protect the confidentiality of non-supervisory employee 

statements provided to OSHA during the inspection. The Secretary asserts that the privilege 

protects the identities of the individuals who provided information to OSHA and also the contents 

of their communications with OSHA. Sec’y Objection pp. 2-3. The Secretary states that the 

justification for the government informer’s privilege is the “public’s interest in the free flow of 

information to the government concerning violations of the law and the informer’s interest in being 

protected from retaliation.” Sec’y Objection p. 3. 

The Secretary contends that Respondent has not shown that Respondent’s need for the 

privileged information outweighs the government’s interest in invoking the privilege and 

withholding the identity of the informants and the informants’ privileged communications. Citing 

the Commission decision in Massman-Johnson, the Secretary asserts that if any of the nonsupervisory employees who provided statements and information to OSHA during the inspection 

are called by the Secretary as hearing witnesses, the statements and information provided by the 

witness to OSHA will be fully disclosed to Respondent at the hearing. Massman-Johnson, 8 BNA 

OSHC 1369, 1375-76. Sec’y Objection pp. 3-4. 

The Secretary confirms that the OSHA Compliance Officer interviewed four nonsupervisory Respondent employees during the investigation. The Secretary asserts that the nonemployee interview statements are “presumptively confidential.” The Secretary notes that 

Respondent admits knowing the identity of Respondent’s employees who were interviewed by the 

OSHA Compliance Officer. The Secretary contends that Respondent’s stated knowledge of the 

identity of the employee witnesses who were interviewed by OSHA increases the risk of retaliation 

against the interviewed employees should Respondent learn of and be displeased by the content of 
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the information the informants provided to OSHA. Sec’y Objection p. 4. The Secretary further 

contends that the prehearing disclosure of witness statements risks interference with OSHA’s 

administrative enforcement proceedings, including in the instant case. “That risk of interference 

entails employers coercing or intimidating employees who have given statements into changing 

their testimony or refraining from testifying at all.” Sec’y Objection pp. 5-6; Sec’y Sur-reply pp. 

1-2. 

Analysis 

The government informer’s privilege - generally

The scope of discovery in Commission proceedings is broad. 

Scope of discovery. The information or response sought through discovery may concern 

any matter that is not privileged and that is relevant to the subject matter involved in the 

pending case and proportional to the needs of the case, considering the importance of the 

issues at stake, the parties’ relative access to relevant information, the parties’ resources, 

the importance of the discovery in resolving the issues, and whether the burden or expense 

of the proposed discovery outweighs its likely benefit. Information within this scope of 

discovery need not be admissible in evidence to be discoverable. 

Commission Rule 52(b) (emphasis added). In Commission proceedings, privilege claims shall be 

raised in accord with Commission Rule 52(d). 

Claims of privilege. The initial claim of privilege shall specify the privilege claimed and 

the general nature of the material for which the privilege is claimed. In response to an 

order from the Commission or the Judge, or in response to a motion to compel, the claim 

shall: Identify the information that would be disclosed; set forth the privilege that is 

claimed; and allege the facts showing that the information is privileged. The claim shall 

be supported by affidavits, depositions, or testimony and shall specify the relief sought. 

The claim may be accompanied by a motion for a protective order or by a motion that the 

allegedly privileged information be received and the claim ruled upon in camera, that is, 

with the record and hearing room closed to the public, or ex parte, that is, without the 

participation of parties and their representatives. The Judge may enter an order and impose 

terms and conditions on the Judge’s examination of the claim as justice may require, 

including an order designed to ensure that the allegedly privileged information not be 

disclosed until after the examination is completed.

Commission Rule 52(d)(1). 
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It has long been recognized that the government informer’s privilege is applicable in 

proceedings before the Commission. The government informer’s privilege protects the 

government’s right to withhold from disclosure the identity of individuals who furnish information 

on violations of the law to law-enforcement officers, including OSHA Compliance Officers. 

Birdair, Inc., 23 BNA OSHC 1493, 1494 (No. 10-0838, 2011); Donald Braasch Constr., Inc., 17 

BNA OSHC 2082, 2083 (No. 94-2615, 1997); Massman-Johnson (Luling), 8 BNA OSHC 1369, 

1371 (No. 76-1484, 1980); Quality Stamping Products Co., 7 BNA OSHC 1285, 1287 (No. 78-

235, 1979). It is the Secretary’s burden to prove facts in support of the privilege. MassmanJohnson, 8 BNA OSHC at 1372. 

The government informer’s privilege is justified by the public interest in the free flow of 

information to the government concerning violations of the law and by the protection of informers 

from retaliation. The Secretary may invoke the government informer’s privilege to prevent the 

disclosure of the identity of an individual who assisted OSHA in the inspection. The privilege is 

applicable “because providing any information to the Secretary could lead to the retaliation the 

privilege is intended to prevent.” Birdair, 23 BNA OSHC at 1495. See Massman-Johnson, 8 BNA 

OSHC at 1371-73; Mitchell v. Roma, 265 F.2d 633, 635, 637 (3d Cir. 1959). 

The privilege protects the identity of informers. Privileged identifying information 

regarding an informant is not narrowly limited to an informant’s name, address, age, and social 

security number. Resp. Memo. pp. 3, 5. The privilege also protects the content of any statement 

or communication that may identify an individual as an informer. Birdair, 23 BNA OSHC at 

1494; Donald Braasch, 17 BNA OSHC at 2083. The privilege protects from disclosure factual 

statements relevant to the investigation, where the disclosure may reveal the identity of the 

informer. See Massman-Johnson, 8 BNA OSHC at 1371-73 (the privilege applies to factual 

statements relevant to an investigation that may reveal the informer’s identity, for example, where 

the tone and manner of the statement tends to indicate whether the individual giving the statement 

cooperated voluntarily or reluctantly with the government during the inspection). See also Reich 

v. Great Lakes Collection Bureau, Inc., 172 F.R.D. 58, 62 (W.D.N.Y 1997) (In case alleging FLSA 

violations, employee interview statements recorded by the investigator were protected from 

disclosure by the informer’s privilege, redaction of the employee’s name and other identifying 
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information alone was insufficient, “because the detailed information contained in [the] statements 

could provide a basis for identification of the employee.”) 

The government informer’s privilege is not absolute. “Where the disclosure of the contents 

of a communication [by the informer to the government] will not tend to reveal the identity of an

informer, the contents are not privileged.” Roviaro v. United States, 353 U.S. 53, 60 (1957); Solis 

v. Delta Oil Co., 2012 WL 1680101, at *3 (S.D. Ohio May 14, 2012); Chao v. Raceway Petroleum, 

Inc., 2008 WL 2064354, at *3 (D.N.J. May 14, 2008). 

The informer’s privilege is a qualified privilege. “[I]f on balance an employer’s need for 

the information to prepare its defense outweighs the government’s interest in withholding the 

identity of the informer,” the privilege must yield. Donald Braasch, 17 BNA OSHC at 2083; 

Quality Stamping, 7 BNA OSHC at 1288. Where disclosure of the privileged information is 

essential to the fair determination of the case, the privilege must yield. Massman-Johnson, 8 BNA 

OSHC at 1371, 1374, 1376, 1378. 

It is Respondent’s burden to show that the need for disclosure of the privileged information 

outweighs the strong public interest in protecting the confidentiality of government sources. 

Massman-Johnson, 8 BNA OSHC at 1374, 1378. See Chao v. Raceway Petroleum, 2008 WL 

2064354, *3. To overcome the privilege the need for the information must be substantial. The 

mere claim that the information may be helpful to Respondent’s defense or is necessary to defend 

against the citation is not enough to overcome the privilege. In Commission proceedings, to 

overcome the privilege Respondent must show that the privileged information is essential to 

Respondent’s hearing preparation and Respondent is unable to obtain the withheld information by 

other means. Donald Braasch, 17 BNA OSHC at 2085; Massman-Johnson, 8 BNA OSHC at 

1376, 1378. See Chao v. Raceway Petroleum, 2008 WL 2064354, *1, 3-4 (In case alleging FLSA 

violations, defendant’s ability to independently gather information from its current and former 

employees enabled defendant to adequately prepare for trial, therefore, defendant did not meet its 

burden to show that production of the privileged statements was necessary to ensure a fair 

determination of the case). Respondent’s need for the disclosure of privileged information is not 

established where Respondent can obtain the information from other sources, such as through 

interviews or depositions of individuals who were present at the inspected worksite or who have 
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information relevant to the issues raised in the violations alleged and defenses claimed. See Donald 

Braasch, 17 BNA OSHC at 2085; Massman-Johnson, 8 BNA OSHC at 1377. 

In Massman-Johnson the Commission held as follows. 

Considering the possibilities for identification and intimidation of prospective witnesses 

based on pretrial disclosure of their statements, . . . we conclude that on balance the 

identities of persons who have given the government statements regarding alleged OSHA 

violations that are the subject of an ongoing investigation along with the contents of the 

statements themselves should not be disclosed before the hearing unless the respondent 

shows that the information is essential to prepare adequately for the hearing and that it is 

unable to obtain the information by other means. 

8 BNA OSHC at 1375-76; 1378. 

During the hearing, after a witness for the Secretary has completed their direct testimony, 

upon motion by the Respondent, the Secretary must turn over all of the witness’ prior statements 

that related to the witness’ testimony. Prior to cross-examination of the witness, Respondent must 

have an opportunity to review and evaluate the statements. Respondent is entitled to an 

opportunity, during cross-examination, to test the veracity and accuracy of the witness’ hearing 

testimony against prior statements the witness gave to the government. Massman-Johnson. 8 BNA 

OSHC at 1376, 1378. See Film Allman, LLC, 25 BNA OSHC 1901, 1905-06 (No. 14-1385, 2015) 

(ALJ). In this case, the Secretary asserts that if any of the non-supervisory employees who 

provided statements and information to OSHA during the inspection are called by the Secretary as 

hearing witnesses, the statements and information provided by the witness to OSHA will be fully 

disclosed to Respondent at the hearing. Sec’y Objection pp. 3-4. 

The informer’s privilege is waived once the identity of the informer is disclosed. Roviaro 

v. United States, 353 U.S. 53, 60 (1957). To be a waiver the disclosure of the informer’s identity 

must have been voluntary. The Secretary does not waive the privilege by submitting a witness list 

or a summary of anticipated witness testimony in a proceeding before the Commission. The 

privilege is not waived where an employer claims to know the identity of employees who 

cooperated with the OSHA inspection or where the informer’s identities appear obvious. Film 

Allman, 25 BNA OSHC at 1906; Donald Braasch, 17 BNA OSHC at 2084-85; Massman-Johnson, 

8 BNA OSHC at 1373. See Mitchell v. Roma, 265 F.2d at 637 (In case alleging FLSA violation, 

no waiver of informer’s privilege found, where plaintiff’s list of individuals known or believed to 
11 

have knowledge of the matter did not mean that any of the named individuals informed others of 

their knowledge.) See generally, Resp. Motion Exh. A, Complainant’s Answer and Objection to 

Interrogatory no. 4 (list of individuals with knowledge of the alleged violations). 

Invocation of the government informer’s privilege

In United States v. Reynolds, 345 U.S. 1 (1953), the Supreme Court articulated the 

appropriate manner for a government agency to invoke a claim of executive privilege: 

There must be a formal claim of privilege, lodged by the head of the department which has 

control over the matter, after actual personal consideration by that officer. The court itself 

must determine whether the circumstances are appropriate for a claim of privilege . . .. 

Id. at 7-8. This direction is applicable to government agency claims of informer’s privilege. See 

United States v. O’Neill, 619 F.2d 222, 226 (3d Cir. 1980); Solis v. Delta Oil Co., 2012 WL

1680101 at *3 n.3; Perez v. American Future Systems, Inc., 2013 WL 5728674, at *3 (E.D. Pa. 

Oct. 21, 2013); Chao v. Raceway Petroleum, 2008 WL 2064354, at *4-5. 

In this case, the Secretary has not invoked a formal claim of the government informer’s 

privilege. On July 17, 2019, a conference call was held with Counsel for the Secretary Marta and 

Respondent Counsel Vance, to discuss the Secretary Motion to take prehearing depositions, 

pursuant to Commission Rule 56, and the instant Respondent Motion to compel discovery, 

pursuant to Commission Rule 52(d)(1). During the call, the parties were advised that the Secretary 

will be given an opportunity to cure the defective privilege claim. On or before, Wednesday, 

August 7, 2019, the Secretary must file documents formally invoking the government informer’s 

privilege, including an affidavit from the Secretary of Labor’s designee with authority to assert 

claims of governmental privileges, attesting to their personal review of the documents and 

materials at issue in this case, giving a specific description of the documents claimed to be 

privileged, and asserting “precise and certain reasons for preserving the confidentiality of the 

communications.” United States v. O’Neill, 619 F.2d at 226. 

During the conference call, the Secretary’s initial, summary, privilege log, stating the basis 

for document redactions pursuant to the government informer’s privilege, was discussed. See

Complainant’s Response and Objection to Respondent’s Document Request no. 1; Resp. Motion 

Exh. A. The initial privilege log broadly identified categories of documents, such as “Inspection 
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Notes,” “Violation Worksheets,” and identified Bates numbered pages that contained redactions 

pursuant to the government informer’s privilege. A review of the Bates numbered pages, 

submitted with the pending Motions and Responses, reveals several document subcategories 

within the broad document categories, set forth on the Secretary’s initial privilege log. For 

example, under the privilege log Document Description column, identified generally as Inspection 

Notes, a review of the Bates numbered pages reveals several document subcategories, including 

Note Taking Sheets, Employee Interview Statements, and Employee On-Site Information. See

Resp. Motion, Exh A, Complainant’s Response and Objection to Respondent’s Document Request 

no. 1; Resp. Exh. B. 

During the call, the Secretary was ordered to provide a detailed privilege log, in support of 

the Secretary’s government informer’s privilege claim, identifying the information that would be 

disclosed if the privilege was not claimed. Commission Rule 52(d)(1). The Secretary must file the 

detailed privilege log on or before Wednesday, August 7, 2019, 

Further, during the conference call, Counsel for the Secretary Marta was ordered to review 

the OSHA inspection file to ascertain if any additional information may be disclosed to 

Respondent (un-redacted), without compromising the government informer’s privilege. Mr. Marta 

was instructed to review the initially redacted documents to determine whether there is any 

information, previously redacted, that may be disclosed as basic factual statements that do not 

disclose the informer’s identity, the informer’s cooperation with the government, subject the 

informer to retaliation, or compromise other privileged confidentiality concerns. If any of the 

initial redactions may be narrowed or removed, following the review, the newly redacted pages 

from the OSHA investigation file must be provided to Mr. Vance on or before Wednesday, August 

7, 2019. These inspection pages shall not be submitted to the undersigned Judge, absent further 

disagreement between the parties regarding the document redactions pursuant to the government 

informer’s privilege. Commission Rule 8(a)(2) (Discovery documents must not be filed with the 

Commission Judge.). 
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Conclusion 

The Secretary has not properly invoked the government informer’s privilege in this case to 

withhold from disclosure the identities of individuals who provided information to OSHA and also 

the contents of their communications with OSHA. 

Order

As stated above, on or before August 7, 2019, the Secretary must 

Properly invoke the government informer’s privilege; 

Provide a detailed privilege log, in support of the Secretary’s government informer’s 

privilege claim; and 

Complete a review of the OSHA inspection file to ascertain if any additional information 

may be disclosed to Respondent (un-redacted), without compromising the government informer’s 

privilege. If any of the initial redactions may be narrowed or removed, following the review, the 

newly redacted pages from the OSHA investigation file must be provided to Respondent Counsel. 

 

SO ORDERED. 

 /s/ Carol A. Baumerich

Dated: July 25, 2019 Carol A. Baumerich

Washington, D.C. Judge, OSHRC