Bonfilio v. Occupational Safety & Health Admin.
Bonfilio v. Occupational Safety & Health Admin.
Opinion of the Court
Pro se plaintiff Ronald Bonfilio is looking for information about deaths and injuries on the sites of several construction companies in the Washington, D.C. metro area. He believes that at least one company may have staged a deadly accident to kill someone who witnessed its illegal operations. And in his view, the Occupational Safety & Health Administration ("OSHA") is not doing its job to expose the companies' wrongdoing. At best, Bonfilio says, the agency is systematically underreporting construction-site fatalities; at worst, it is covering up homicide. See Pl.'s Opp'n Mot. Summ. J. at 12; Pl.'s Mot. Compel, ECF No. 17, at 1.
In July 2016, Bonfilio submitted two requests to OSHA under the Freedom of Information Act ("FOIA"). His first request sought documents "concerning any deaths of ... employees or any persons on the[ ] property" of four companies since 2001: Fort Myer Construction Company, Anchor Construction Company, Capitol Paving of DC, and Civil Construction LLC. Compl. Ex. 1, at 1. His second request sought information concerning "any injuries" of employees or visitors for the same companies in the same period. Id. at 2.
After an initial search, an attorney for the Department of Labor-OSHA's parent agency-identified eleven OSHA investigations that might contain information responsive *155to Bonfilio's request. Decl. of Joseph P. Plick Supp. Def.'s Mot. Summ. J. ("Plick Decl.") ¶ 12.
In an August 2016 letter, OSHA informed Bonfilio that it did not uncover any records responsive to his first request-the one regarding deaths on worksites. Compl. Ex. 2. As for the second request-regarding injuries-OSHA a month later provided Bonfilio with 273 pages of responsive documents. Id. Ex. 3; Plick Decl. ¶ 17. The agency redacted personal identifying information of the OSHA investigators and of the injured employees and their families on several pages of documents. Plick Decl. ¶¶ 34-36. In doing so, it invoked FOIA Exemptions 6 and 7(C), which (respectively) protect personnel files and records compiled for law enforcement purposes that, if disclosed, "could reasonably be expected to constitute an unwarranted invasion of personal privacy invade personal privacy."
Dissatisfied with the document production, Bonfilio followed up with the agency and pointed to news reports about the 2012 death of a man named Leroy Cook at a Fort Myer work site. Plick Decl. ¶ 20. The Department of Labor conducted another search but found no records related to Mr. Cook's death.
Bonfilio then appealed within the Department of Labor, contending that OSHA had not adequately searched for records and that some of its withholdings and redactions were unjustified. Compl. Ex. 4. When the agency did not timely resolve the appeal, he brought this lawsuit pro se challenging its response to his FOIA requests. OHSA has now filed for summary judgment. In addition to opposing OSHA's motion, Bonfilio has moved to compel the production of documents and for leave to engage in discovery. The Court will grant OSHA's motion and deny Bonfilio's various discovery-related motions.
1. Adequacy of OSHA's Search. The crux of Bonfilio's argument here is that it is "inconceivable" that OSHA has no records of deaths at the four construction *156companies, and therefore that its search must have been inadequate. The Court disagrees.
The adequacy of a search is not judged by its "fruits." Iturralde v. Comptroller of Currency,
OHSA has done that here. It has submitted affidavits from a Department of Labor attorney who led the search efforts, Joseph Plick, and from the director of OSHA's field office for the Washington area, Nadira Janack. Mr. Plick and Ms. Janack recount the search procedures described above-which strike the Court as reasonable-and Janack explains that the agency is confident that there are no other locations where it could have searched and found additional responsive records. See Janack Decl. ¶ 18.
These assertions are "accorded a presumption of good faith," SafeCard Servs., Inc. v. SEC,
The Court finds Bonfilio's arguments unavailing. His sole contention regarding the adequacy of OSHA's search per se is that the agency did not specify exactly what media it searched-and, in particular, it did not state that it looked for tapes, photos, videos, hard drives, thumb drives, emails, and notebooks of inspectors. But FOIA does not require this level of specificity; rather, the agency can describe generally that it searched electronically and in its physical files, as it did here. See Oglesby,
To his second point, Bonfilio's belief that OSHA found responsive records but is withholding them in order to evade public scrutiny rests only on conjecture. It is not supported by any evidence that could overcome the sworn declarations submitted by the agency. See Wilbur v. CIA,
*157Finally, as to the contention that OSHA has unlawfully destroyed records: As a general matter, FOIA does not impose a duty on agencies to keep their records forever. Wilbur v. CIA,
In short, none of Bonfilio's arguments undermine OSHA's assertion that it looked for records relating to deaths at the four construction companies and was unable to find any, and that any gap in the agency's records is a result of its lawful protocol for handling case files.
2. Bonfilio's Requests for Discovery. Beyond opposing summary judgment on the issue of adequacy, Bonfilio also seeks discovery-including productions of documents and depositions of OSHA investigators-based on his contention that OSHA has illegally destroyed records about Fort Myer. The Court will deny his request.
Discovery is strongly disfavored in FOIA cases. See Wheeler v. CIA,
The cases on which Bonfilio relies-which allowed for some discovery-involved record evidence that the agency intentionally destroyed responsive records after someone submitted a FOIA request. See Chambers v. Dep't of Interior,
3. OSHA's Withholdings. In his agency appeal, Bonfilio challenged OSHA's reliance on Exemptions 6 and 7(C) to redact the personal information of OSHA employees and other individuals from several responsive documents. See Compl. Ex. 4, at 2-3. Apparently anticipating that the issue would remain live, OSHA's motion for summary judgment argues that its withholdings were proper. In his opposition and various discovery-related motions, however, Bonfilio does not respond to OSHA's arguments regarding withholding; he instead focuses solely on OSHA's search and document-retention procedures. While the Court is mindful that pro se plaintiffs like Bonfilio must be given the benefit of the doubt when it comes to doctrines of waiver and forfeiture, here he has given the Court nothing to work with. The Court must treat any argument regarding OSHA's withholdings as forfeited.
* * *
For those reasons, the Court will grant OSHA's motion for summary judgment. It will deny Bonfilio's motions to compel production of documents, for leave to subpoena and depose OSHA inspectors, to add necessary parties,
This initial search also identified potentially relevant case files in Maryland and Virginia. But Maryland and Virginia are so-called "State Plan states," meaning that their own state occupational-safety agencies are responsible for investigation and recordkeeping. They do not rely on the federal OSHA and their records are not subject to FOIA. Plick Decl. ¶ 9; see
The agency also withheld some material pursuant to Exemptions 4, 5 and 7(d), but Bonfilio does not challenge withholdings made under those exemptions.
Bonfilio's motion for leave to add parties seeks to add individual OSHA inspectors as defendants. The proper defendant in a FOIA case, however, is the agency and the agency alone. See Abuhouran v. Nicklin,
Reference
- Full Case Name
- Ronald J. BONFILIO v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION
- Cited By
- 5 cases
- Status
- Published