OSHA Data CIH Inc v. US Dept Labor ( 2000 )


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  •                                                                                                                            Opinions of the United
    2000 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    7-26-2000
    OSHA Data CIH Inc v. US Dept Labor
    Precedential or Non-Precedential:
    Docket 99-5457
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2000/153
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    Filed July 26, 2000
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 99-5457
    OSHA DATA/CIH, INC.,
    Appellant
    v.
    UNITED STATES DEPARTMENT OF LABOR
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Civil No. 98-cv-00283)
    District Judge: Hon. Alfred J. Lechner, Jr.
    Argued February 3, 2000
    Before: MANSMANN, NYGAARD and RENDELL,
    Circuit Judges
    (Filed: July 26, 2000)
    Philip D. Stern, Esq. [ARGUED]
    The Common - Suite 203
    225 Millburn Avenue
    Millburn, NJ 07041
    Counsel for Appellant
    Susan Handler-Menahem, Esq.
    Office of United States Attorney
    970 Broad Street, Room 700
    Newark, NJ 07102
    Wendy M. Keats, Esq. [ARGUED]
    Leonard Schaitman, Esq.
    United States Department of Justice
    Civil Division, Appellate Staff
    Room 9152
    601 D Street, N.W.
    Washington, DC 20530
    Counsel for Appellee
    OPINION OF THE COURT
    RENDELL, Circuit Judge.
    In this appeal, we are asked to determine whether the
    projected $1.7 million cost of notifying companies affected
    by two requests seeking potentially confidential information
    under the Freedom of Information Act ("FOIA"), 1 and of
    evaluating those companies' responses, were properly
    chargeable to a commercial use requester as "review costs."2
    This is an issue of first impression in the courts of appeals.
    The United States District Court for the District of New
    Jersey dismissed two counts of a four-count FOIA suit on
    the basis that plaintiff-appellant, OSHA Data/CIH, Inc.,
    who had requested the data in question, was responsible
    for paying such costs to defendant-appellee, the United
    States Department of Labor,3 but that OSHA Data had
    indicated it was unable to pay these costs. OSHA Data now
    _________________________________________________________________
    1. 5 U.S.C. S 552 (1994).
    2. The United States Department of Labor sought to undertake this
    notification process in order to determine whether any of the requested
    records might qualify as "confidential commercial information" within the
    meaning of Exemption 4 to FOIA. See 5 U.S.C.S 552(b)(4).
    3. To avoid confusion between the name of the appellant and the name
    of the agency, we will refer to the Department of Labor or any of its
    subdivisions, including OSHA (the Occupational Safety and Health
    Administration), as "the DOL" or "the agency" rather than "OSHA."
    2
    appeals from the District Court's dismissal of these two
    counts (Counts I and II) of its action. We agree with the
    District Court that the costs of notification were"review
    costs" that OSHA Data was required to pay in connection
    with the agency's determination of the appropriate
    disposition of the FOIA requests, and will affirm the
    dismissal of Counts I and II.
    The District Court also dismissed the remaining two
    counts of the suit on mootness grounds. OSHA Data
    concedes that Count IV was moot but argues that Count III
    was incorrectly dismissed. We agree that Count III was
    properly dismissed as moot and will affirm the dismissal of
    this count as well.4
    I. Facts and Procedural History
    The facts of this case are largely undisputed. OSHA Data
    is a private business that collects regulatory compliance
    and enforcement information from various federal
    government agencies, repackages that information into
    computer databases and customized reports, and then sells
    the information to its clients.5See OSHA Data
    web site, Who We Are (visited June 1, 2000)
    ; see also A. at 172 (statement
    of Philip D. Stern, counsel for OSHA Data). Among the
    governmental information gathered by OSHA Data is data
    from the DOL concerning workplace compliance with
    Occupational Safety and Health Administration ("OSHA")
    requirements. The DOL routinely supplies this information
    to OSHA Data in the form of 9-track computer tapes,
    provided in response to OSHA Data's FOIA requests.
    At issue here are three separate FOIA requests for
    information from the DOL, which form the basis of the
    three counts in OSHA Data's complaint.6 Counts I and II
    _________________________________________________________________
    4. As we mention below, we will also leave undisturbed certain
    intermediate rulings made by the District Court, including the District
    Court's affirmance of a stay issued by the Magistrate Judge. See infra
    n.20.
    5. OSHA Data is a New Jersey corporation with its primary place of
    business in Maplewood, New Jersey. See A. at 4-5.
    6. Although OSHA Data filed a First Amendment to Complaint adding a
    fourth count reflecting a fourth FOIA request, see A. at 49-50, the
    parties have since agreed that the records sought in this fourth request
    have been produced, rendering Count IV of the complaint moot. See
    OSHA Data Br. at 5; DOL Br. at 3.
    3
    seek certain records maintained by the DOL7 for calculating
    Lost Work Day Injury and Illness ("LWDII") rates for
    individual work sites. The LWDII rate for a particular
    workplace is the ratio of the number of incidences of
    serious injuries and illnesses to the number of employee
    work hours performed at that work site during a given time
    period. The information needed to calculate the LWDII rate
    is generated by the private employers themselves.
    OSHA Data's first FOIA request (Count I)8 sought data
    collected by the DOL in its 1996 "Data Collection Initiative,"
    a massive information-gathering endeavor covering
    approximately 80,000 establishments in the manufacturing
    sector and in other industries; these industries were chosen
    on the basis either of high injury and illness rates or
    previous DOL inspection history. See A. at 5-6, 12, 16. The
    information obtained through the Data Collection Initiative
    included each establishment's name and address, the
    average number of employees who worked at that
    establishment in 1995, total employee work hours for 1995,
    numbers and kinds of occupational injuries and illnesses at
    the establishment in 1995, and whether those injuries and
    illnesses resulted in deaths or lost work days. See A. at
    146-49. The DOL would use this information to calculate
    injury and illness rates such as the LWDII rate. See A. at
    19. Much, but not all, of the data collected in the Data
    Collection Initiative paralleled information that employers
    had already been recording on a form called "OSHA Form
    200" or "Log 200." In the FOIA request that is the subject
    of Count I, OSHA Data requested the following:
    [A] copy of all Log 200 data gathered from
    approximately 80,000 employers under the so-called
    _________________________________________________________________
    7. These records are maintained by OSHA (the Occupational Safety and
    Health Administration), which is a subdivision of the Department of
    Labor.
    8. The information at issue in Count I was requested by OSHA Data in
    a letter dated October 29, 1996. The information at issue in Counts II
    and III was requested on October 24, 1996, and September 12, 1997,
    respectively. Strictly chronologically speaking, therefore, Count I is the
    second request rather than the first; but we will refer to the Count I
    request as the "first request" and Count II as the "second request," to
    track the language in the parties' papers.
    4
    "Data Collection Initiative" which began in February
    1996. We specifically request the data include all
    captured fields of information such as the
    establishment name and address, name and telephone
    number of person who provided the data, average
    employment, hours worked, reporting period and the
    calculated LWDI [sic] value itself.
    A. at 12 (Letter from Matthew M. Carmel, OSHA Data
    President, to DOL official Steve Newell, Oct. 29, 1996); see
    also A. at 5-6 (Complaint, First Count).
    OSHA Data's second request also sought information on
    LWDII rates. In contrast to the Count I request, which
    targeted information obtained via the Data Collection
    Initiative survey, the Count II request concerned
    information obtained during the DOL's inspections of
    approximately 7000 individual work sites.9 In addition to
    conducting the inspection, DOL compliance officers were
    directed to record injury and illness data from the
    establishments' Log 200 forms; this data was then recorded
    in a centralized DOL database, the Integrated Management
    Information System ("IMIS"). The database software would
    automatically calculate each establishment's LWDII rate
    from the information collected. OSHA Data sought the
    following information in its Count II request:
    [A] copy of the Lost Work Day Injury and Illness (LWDI
    [sic]) data calculated during OSHA enforcement
    inspections and entered into the Integrated
    Management Information System (IMIS) and current
    through September 30, 1996. . . . We specifically
    request the data include all captured fields of
    information associated with calculation of the LWDII
    such as the inspection activity number, number of
    work hours, reporting period and the LWDII value
    itself.
    A. at 32 (Letter from Matthew M. Carmel, OSHA Data
    President, to DOL official Bruce Beverage, Oct. 24, 1996);
    see also A. at 6-7 (Complaint, Second Count).
    _________________________________________________________________
    9. The industries that underwent these inspections were different from
    the industries covered by the Data Collection Initiative. Compare A. at 33
    with A. at 16-17. See also DOL Supp. App. at 1.
    5
    The Count III request sought certain computerized
    information relating to the DOL onsite inspections
    themselves. The Count III request is limited to information
    collected in the 30 days immediately prior to creation of the
    computer file tape. OSHA Data alleges that this FOIA
    request "was targeted specifically to address[DOL]'s new
    policy of withholding the most recent 30 days of
    information from the computer ``derived' file supplied to
    FOIA requesters." OSHA Data Br. at 9; see also A. at 8-9
    (Complaint, Third Count). The DOL does not admit that it
    has such a policy. See A. at 63 (Answer, Third Count); DOL
    Br. at 51-53. The Count III request seeks the following
    information:
    [A] copy of the sequential IMIS derived file. We
    specifically request the file contain all available data
    elements including the inspection, violation,
    administrative payment, hazardous substance,
    accident, related activity, debt, event history and
    optional segments for all inspection records up to and
    including the date of file tape creation. The requested
    file period of coverage is 30 days.
    A. at 46 (Letter from Matthew M. Carmel, OSHA Data
    President, to DOL official Bill Wright, Sept. 12, 1997); see
    also A. at 8-9 (Complaint, Third Count).
    The DOL denied the Count I and Count II requests 10 and,
    thereafter, OSHA Data lodged administrative appeals of
    these denials.11 See A. at 5, 7. After awaiting resolution of
    the appeals for over a year, OSHA Data filed a three-count
    complaint in the United States District Court for the
    District of New Jersey, requesting an injunction preventing
    the DOL from withholding the records -- in effect, an
    _________________________________________________________________
    10. The DOL initially asserted grounds for withholding the records that
    are different from the grounds it now asserts. However, the agency may
    justify the withholding of documents under any applicable exemption to
    FOIA, even if it is not the exemption that was initially asserted. Cf. 5
    U.S.C. S 552(a)(4)(B) (describing district court review of agency's FOIA
    decision).
    11. The DOL did not rule on the Count III request, because the DOL
    maintains that it has provided the data in question in response to later
    FOIA requests by OSHA Data.
    6
    injunction compelling the DOL to produce the records
    pursuant to FOIA.12 The complaint also contained a request
    for reasonable attorney's fees and litigation costs. The DOL
    moved to stay the matter as to Counts I and II, arguing
    that, because of potential issues of confidentiality, the
    agency was required to implement a process of notifying
    affected companies before it could finally determine whether
    the requested records were subject to disclosure under
    FOIA. The DOL asserted that this procedure was mandated
    by its own regulations, see 29 C.F.R. S 70.26(d), and that
    these costs, incurred in order to make a determination of
    whether disclosure was appropriate, were "review costs."
    The DOL further contended that OSHA Data, as a
    "commercial use" requester of FOIA records, was required
    by statute to pay all "review costs" in connection with the
    request, and that these "review costs" would include the
    costs of notifying the companies and evaluating their
    responses.13
    After an interim grant of the stay requested by the DOL,14
    _________________________________________________________________
    12. OSHA Data later filed an amended complaint that included the now-
    moot fourth count mentioned above.
    13. The DOL projected these costs to total approximately $1.7 million.
    For the Count I request, the DOL estimated a cost of $1,554,250 --
    $24,000 in mailing costs ($0.32 x 75,000 companies), $6,250 in
    preparing letters for mailing ($10/person/hour x 75,000 ö 120
    envelopes/hour/person), $1,500,000 for staff time reviewing the
    submitters' responses ($20/person/hour x 75,000 ö 1
    response/hour/person), and $24,000 for a second mailing. For the
    Count II request, the DOL estimated a cost of $145,063, using the same
    hourly rates for a base of 7,000 submitters. See DOL Supp. App. at 1.
    It is worth noting that these are projected rather than actual costs.
    Should it occur that many of the companies contacted would not wish
    to object to disclosure of the requested information, the actual costs
    might be much lower, and of course OSHA Data would be responsible
    only for the actual costs.
    14. The DOL sought this stay to allow the agency the opportunity to
    contact the submitters of the information requested, so that the agency
    could determine whether this information fell under one of FOIA's nine
    exemptions to disclosure. This Motion to Stay was referred to Magistrate
    Judge Dennis M. Cavanaugh pursuant to 28 U.S.C.S 636(b)(1)(A); Judge
    Cavanaugh granted the motion, ruling that the DOL was required to
    7
    the District Court ruled on the merits of OSHA Data's
    Motion for Summary Judgment as to Counts III and IV, and
    on the DOL's Cross-Motion to Dismiss, or in the
    Alternative, for Summary Judgment as to all counts. See A.
    at 321-50 (unpublished Letter-Opinion and Order of
    District Court, May 10, 1999). The District Court granted
    the DOL Motion to Dismiss as to all counts, and denied the
    OSHA Data Motion for Summary Judgment. The District
    Court found that OSHA Data, by stating its inability and/or
    unwillingness to pay the estimated $1.7 million"review
    costs," had demonstrated that it was not able to meet the
    conditions required for the lifting of the stay. The District
    Court found that OSHA Data was required to pay the costs
    of notification in order to pursue its claim, and dismissed
    Counts I and II based on OSHA Data's stated inability to
    pay.15 See A. at 340-41. The District Court dismissed
    Counts III and IV as moot, reasoning that OSHA Data had
    already received the information requested in those counts.
    Although OSHA Data conceded that it had received the
    Count III information as a result of subsequent FOIA
    requests, OSHA Data had alleged that Count III presented
    a scenario that was "capable of repetition, yet evading
    review,"16 A. at 343, and as such should be exempted from
    the application of the mootness doctrine. The District Court
    found that OSHA Data had not met its burden of showing
    _________________________________________________________________
    undertake the notification and that it was appropriate to charge OSHA
    Data the costs of notification and mailing, as well as the costs of
    evaluating responses, as "review costs." See A. at 224-234. The District
    Court (Judge Alfred J. Lechner, Jr.) then affirmed the stay, interpreting
    it as a stay specifically of Counts I and II.
    15. The District Court denied summary judgment to both parties,
    reasoning that there remained a genuine issue of fact as to whether the
    requested records did in fact fall under an exemption to FOIA. The
    District Court also rejected the DOL's argument that Counts I and II
    should be dismissed on the ground that nonpayment constituted a
    failure to exhaust administrative remedies. The parties do not appeal
    these determinations.
    16. Perhaps the classic example of such a scenario is Roe v. Wade. See
    Roe v. Wade, 
    410 U.S. 113
    , 125 (1973) (quoting Southern Pac. Terminal
    Co. v. ICC, 
    219 U.S. 498
    , 515 (1911)).
    8
    an exception to the mootness doctrine.17 See A. at 347.
    OSHA Data now appeals the District Court's order.
    II. Jurisdiction and Standard of Review
    The District Court had subject matter jurisdiction over
    this case pursuant to FOIA, 5 U.S.C. S 552(a)(4)(B), and
    pursuant to Congress's grant of federal question
    jurisdiction, 28 U.S.C. S 1331. We have appellate
    jurisdiction pursuant to 28 U.S.C. S 1291.
    We review the District Court's dismissals of Counts I, II,
    and III de novo. See Ditri v. Coldwell Banker Residential
    Affiliates, Inc., 
    954 F.2d 869
    , 871 (3d Cir. 1992) (exercising
    plenary review over dismissal for failure to state a claim);
    Northeast Women's Center, Inc. v. McMonagle, 
    939 F.2d 57
    ,
    61 (3d Cir. 1991) (exercising plenary review over a district
    court's decision that a case is moot).
    III. FOIA and Its Allocation of Responsibility for Costs
    The Freedom of Information Act, 5 U.S.C. S 552, was
    enacted in 1966 in response to Congress's perception that
    section 3 of the original Administrative Procedure Act, 5
    U.S.C. S 1002 (1964 ed.), did not provide for adequate
    governmental disclosure of information to the public. See,
    e.g., Chrysler Corp. v. Brown, 
    441 U.S. 281
    , 293 & n.15
    (1979). Congress therefore structured FOIA to reflect "a
    general philosophy of full agency disclosure unless
    information is exempted under clearly delineated statutory
    language." S. Rep. No. 89-813, at 3 (1965), quoted in
    Department of the Air Force v. Rose, 
    425 U.S. 352
    , 360-61
    (1976). As the District Court for the District of Columbia
    has succinctly described: "An agency may withhold
    documents responsive to a FOIA request only if the
    responsive documents fall within one of nine enumerated
    statutory exemptions. The agency bears the burden of
    justifying the withholding, and the [district] court reviews
    the agency claims of exemption de novo." Winterstein v.
    United States Dep't of Justice, 
    89 F. Supp. 2d 79
    , 80
    (D.D.C. 2000) (citations omitted). An agency can be sued for
    _________________________________________________________________
    17. OSHA Data conceded that Count IV was moot. See A. at 348.
    9
    refusing to disclose information that it should have
    disclosed pursuant to FOIA, see 5 U.S.C.S 552(a)(4)(B); this
    is the type of suit that is before us in this case. 18 However,
    an agency can also be sued through the vehicle of the
    Administrative Procedure Act for allowing disclosure of
    information that was in fact covered by one of the nine
    exemptions to FOIA. See Chrysler Corp. v. Brown , 
    441 U.S. at 317-18
    . This latter type of suit is commonly referred to
    as a "reverse FOIA" suit.
    FOIA contains provisions governing the circumstances
    under which a requester will be required to pay the costs of
    producing the records it has requested. As amended in
    1986, FOIA delineates three types of costs --"search
    costs," "duplication costs," and "review costs" -- and places
    requesters into three categories that determine which of
    these costs a given requester must pay. If a requester wants
    the information for a "commercial use," it must pay for all
    three types of costs incurred. In contrast, educational
    institutions and the news media are required to pay only
    duplication costs, and all other requesters are required to
    pay search and duplication costs but not review costs. See
    5 U.S.C. S 552(a)(4)(A)(ii). OSHA Data agrees that it is
    making a request for "commercial use," and therefore is
    liable for all three categories of costs, including review
    costs. See OSHA Data Br. at 29.
    Prior to 1986, FOIA did not require commercial users to
    pay "review costs," and in fact the pre-1986 statute did not
    differentiate between requests for commercial use and
    requests for non-commercial use. Thus, by their very
    existence, the 1986 amendments reflect a desire to treat
    commercial uses differently from other uses, requiring that
    commercial users shoulder more of the costs of FOIA
    requests, rather than having taxpayers bear costs incurred
    in processing these commercial requests. See 5 U.S.C.
    S 552(a)(4)(A)(ii)(I) (reflecting language added via the
    _________________________________________________________________
    18. FOIA explicitly provides that the district court shall review de novo
    the agency's determination that records are not subject to disclosure.
    See 5 U.S.C. S 552(a)(4)(B).
    10
    Freedom of Information Reform Act of 1986, Pub. L. No. 99-
    570, S 1803, 
    100 Stat. 3207
    ).19
    FOIA defines review costs as "only the direct costs
    incurred during the initial examination of a document for
    the purposes of determining whether the documents must
    be disclosed under this section and for the purposes of
    withholding any portions exempt from disclosure under this
    section." 5 U.S.C. S 552(a)(4)(A)(iv). The DOL argues that the
    costs of notifying the affected businesses and evaluating
    their responses were "review costs," since they were part of
    the process of the initial review of the records in order to
    make the determination as to the applicability of Exemption
    4, the FOIA provision that exempts confidential commercial
    information from FOIA's disclosure requirements.
    IV. Discussion
    A. Issues Raised on Appeal
    The essential issues before us are: whether the costs of
    notification and evaluation were appropriately considered
    "review costs" by the DOL such that the DOL could assess
    these costs to OSHA Data, and could withhold the records
    based on nonpayment of these costs; whether the resort to
    notification was proper; and whether Count III was moot.
    We conclude that the District Court correctly held that the
    _________________________________________________________________
    19. Legislative history and agency interpretations of the statutory
    language further flesh out the policies that are apparent from the
    language of the 1986 amendments themselves. The Office of
    Management and Budget, which is charged with issuing guidance on
    FOIA fees, see 5 U.S.C. S 552(a)(4)(A)(i), has commented as follows on the
    1986 amendments: "[I]t seems clear that the Congress intended to
    distinguish between requesters whose use of the information was for a
    use that furthered their business interests, as opposed to a use that in
    some way benefitted the public. The amendment shifts some of the
    burden of paying for the FOIA to the former group and lessens it for the
    latter." 
    52 Fed. Reg. 10,011
    , 10,013 (1987); see also 132 Cong. Rec.
    29,616 (1986) (statement of Rep. English) ("[H]igher fees for commercial
    users will recover more of the costs of processing requests when one
    business uses the FOIA to seek information about another under
    circumstances in which there are no public interest aspects to the
    disclosure").
    11
    costs of notification and evaluation were "review costs"
    which DOL would properly incur and for which OSHA Data
    was responsible, and that Count III was moot.20
    B. Applicable Law
    1. Review Costs
    The District Court determined that the anticipated costs
    of notification and evaluation were "review costs." OSHA
    Data argues that these are not the types of costs that are
    covered by the statutory and regulatory definitions of
    "review costs."
    FOIA itself contains a definition of "review costs":
    Review costs shall include only the direct costs
    incurred during the initial examination of a document
    for the purposes of determining whether the
    documents must be disclosed under this section and
    for the purposes of withholding any portions exempt
    from disclosure under this section.
    5 U.S.C. S 552(a)(4)(A)(iv).21 The DOL regulations give
    _________________________________________________________________
    20. OSHA Data lists four separate "issues presented" on appeal. OSHA
    Data Br. at 2. Some involve procedural objections to intermediate
    decisions of the District Court, including the District Court's decision
    to
    affirm the stay and to affirm other orders of the Magistrate Judge. We
    will not address the procedural aspects of these interlocutory objections
    to the District Court's intermediate orders, as these aspects do not
    affect
    the outcome on appeal; it is a well-known general principle that
    interlocutory orders merge in the final judgment of the District Court.
    See Cohen v. Beneficial Indus. Loan Corp., 
    337 U.S. 541
    , 546 (1949)
    (stating that 28 U.S.C. SS 1291 and 1292 do not "permit appeals, even
    from fully consummated decisions, where they are but steps towards
    final judgment in which they will merge"). However, OSHA Data can of
    course attack the substance of the reasoning that underlies the District
    Court's order affirming the stay, since the substantive basis of this
    decision -- i.e., that the DOL was justified in charging the costs of the
    notification to OSHA Data as "review costs"-- is memorialized, and
    indeed specifically included, in the District Court's final order of May
    10,
    1999. See A. at 336-37. To the extent that these objections implicate the
    substantive issues presented by this appeal, we will dispose of them via
    our discussion of the merits, see infra section IV.C.
    21. FOIA also allows an agency to require advance payment of part of the
    anticipated costs when those costs are predicted to exceed $250. See 5
    U.S.C. S 552(a)(4)(A)(v).
    12
    further substance to this definition of review costs, terming
    them the "costs associated with . . . [r]eviewing records to
    determine whether any materials are exempt." 29 C.F.R.
    S 70.40(a). The regulations define "direct costs" as "those
    expenditures which an agency actually incurs in searching
    for and duplicating (and in the case of a commercial
    requester, reviewing) documents to respond to an[sic] FOIA
    request," and further specify that these costs include
    employee salaries. 
    Id.
     S 70.38(b). The regulations lay out a
    general rule as to when review costs can be charged to the
    requester:
    [C]harges may only be assessed for review at the initial
    level, i.e. the review undertaken the first time the
    documents are analyzed to determine the applicability
    of specific exemptions to the particular record or
    portion of the record. Thus a requester would not be
    charged for review at the administrative appeal level
    with regard to the applicability of an exemption already
    applied at the initial level.
    
    Id.
     S 70.40(d)(3). The regulations do not specifically make
    reference to, or provision for, the type of costs at issue here.
    2. Confidentiality and Notification Procedures
    The DOL argues that it had to follow the notification
    procedure, and incur the costs at issue, in order to
    determine whether any of the requested records22 fell within
    Exemption 4 to FOIA. Exemption 4 provides that an agency
    is not required to disclose "trade secrets and commercial or
    financial information obtained from a person and privileged
    or confidential."23 5 U.S.C.S 552(b)(4). If the information
    _________________________________________________________________
    22. The parties agree that the requested information qualified as
    "records" within the meaning of FOIA. See A. at 279-80 (DOL's responses
    to interrogatories); OSHA Data Br. at 10.
    23. OSHA Data concedes that the information is commercial in
    character, and, with the exception of one piece of data (the LWDII rate),
    concedes that the information is obtained from a person. Employers are
    "persons" within the meaning of FOIA. See 5 U.S.C. S 551(2) (defining
    "person" to include "an individual, partnership, corporation, association,
    or public or private organization other than an agency"). OSHA Data
    contends that the LWDII rate is not "obtained from a person" because it
    13
    requested is "confidential commercial information" as
    described by the exemption, the agency need not release it
    pursuant to FOIA.24
    Therefore, the determination that the DOL would
    ultimately have to make is whether the information was
    "confidential" so as to be exempt from disclosure under the
    statute.25 The issue presently before us, however, is
    _________________________________________________________________
    is a derived figure calculated by the DOL. See OSHA    Data Br. at 18.
    However, as it appears that the LWDII rate is merely   a ratio calculated
    from individual components all of which are obtained   from employers, we
    find that the LWDII rate, like the other information   sought by OSHA
    Data, is "obtained from a person."
    24. The leading case interpreting Exemption 4 is National Parks &
    Conservation Ass'n v. Morton, 
    498 F.2d 765
     (D.C. Cir. 1974). National
    Parks lays out the following test governing the ultimate agency decision
    whether requested information is exempt from disclosure:
    [C]ommercial or financial matter is "confidential" for purposes of
    the
    exemption if disclosure of the information is likely to have either
    of
    the following effects: (1) to impair the Government's ability to
    obtain
    necessary information in the future; or (2) to cause substantial
    harm to the competitive position of the person from whom the
    information was obtained.
    
    Id. at 770
     (footnote omitted).
    25. OSHA Data argues as an initial matter that the Log 200 and LWDII
    information cannot be considered "confidential" because this information
    is readily available elsewhere. See OSHA Data Br. at 28-29; Reply Br. at
    7-13. It is true that DOL regulations require employers to post an annual
    summary of Log 200 data at the workplace itself, see 29 C.F.R. 1904.5,
    and that some information about workplace safety for selected work sites
    has been posted on portions of the DOL's World Wide Web site, see
    OSHA News Releases & Statements: Combined National & Regional Index
    (visited June 19, 2000) .
    However, we reject OSHA Data's argument that these limited
    disseminations of information render the Log 200 and LWDII data
    "officially made available to the public" such that predisclosure
    notification would not be required. 29 C.F.R.S 70.26(g)(2). As the DOL
    points out, see DOL Br. at 40-41, the posting of an annual injury and
    illness summary at the work site itself is a limited disclosure to a
    limited
    audience, a disclosure which is surely insufficient to render the data
    publicly available; similarly, the DOL's inclusion on its Web site of
    14
    whether the notification costs that the agency anticipates
    incurring in furtherance of this ultimate determination
    would be properly incurred by the DOL, and properly
    charged to OSHA Data. In this case, of course, the DOL is
    not arguing that the requested information can ultimately
    be withheld as confidential commercial information under
    Exemption 4; the DOL is merely arguing that it cannot
    provide the requested information without first ascertaining
    whether it is confidential commercial information within the
    meaning of Exemption 4. The DOL asserts that, as part of
    its process of determining whether the statutory exemption
    was applicable, it was required by its own regulations to
    undertake the notification procedures at issue, and that
    FOIA and these regulations permit the agency to charge the
    commercial requester the costs of these procedures.
    These regulations mandate notification whenever the
    DOL "has reason to believe that disclosure of the
    information could reasonably be expected to cause
    substantial competitive harm," 29 C.F.R. S 70.26(d)(2)(ii).
    The DOL concluded, and the District Court agreed, that the
    possibility of substantial competitive harm was sufficient to
    trigger the regulations mandating notification of the
    business submitters. That is, the DOL believed that it had
    to pursue notification so it could determine whether
    information requested by OSHA Data would ultimately
    qualify as "confidential" under Exemption 4.
    The notification procedures that are to precede the
    disclosure of potentially confidential information have as
    their genesis a presidential order. In 1987, President
    Ronald Reagan signed Executive Order 12,600 ("E.O.
    12,600"), entitled "Predisclosure Notification Procedures for
    Confidential Commercial Information." Exec. Order No.
    12,600, 
    52 Fed. Reg. 23,781
     (1987). E.O. 12,600's stated
    purpose is "to provide predisclosure notification procedures
    _________________________________________________________________
    information on a few specific workplaces is not tantamount to a public
    dissemination of the entire Data Collection Initiative information. OSHA
    Data has not met its burden of producing evidence that the information
    it seeks in its FOIA requests has already been made public by the
    agency. See Occidental Petroleum Corp. v. SEC , 
    873 F.2d 325
    , 343 (D.C.
    Cir. 1989).
    15
    under the Freedom of Information Act concerning
    confidential commercial information, and to make existing
    agency notification provisions more uniform." Id. at 23,781
    (preamble). The Executive Order directs agency heads to
    "establish procedures to notify submitters of records
    containing confidential commercial information." Id. (S 1).
    Section 3(b) of E.O. 12,600 provides that each agency head
    "shall . . . provide the submitter notice . . . whenever the
    department or agency determines that it may be required to
    disclose records . . . the disclosure of which the department
    or agency has reason to believe could reasonably be
    expected to cause substantial competitive harm." Id. at
    23,781-82 (S 3(b)). The Executive Order further states that
    the agency procedures should afford the submitter an
    opportunity to "object to the disclosure of any specified
    portion of the information and to state all grounds upon
    which disclosure is opposed," id. at 23,782 (S 4), that the
    agency "shall give careful consideration to all such specified
    grounds for nondisclosure" prior to making afinal
    determination whether the information is subject to
    disclosure, id. (S 5), and that, in the event the agency shall
    decide to disclose information following a submitter's
    objection, the agency shall provide the submitter with a
    written statement explaining its decision to disclose, see id.
    Pursuant to E.O. 12,600, see id. (S7), the DOL enacted
    regulations to govern predisclosure notification for requests
    that potentially triggered Exemption 4. These regulations
    contain language similar to that in the Executive Order.
    The regulations provide that the DOL "shall provide a
    business submitter with notice of a FOIA request," 29
    C.F.R. S 70.26(d)(2), whenever the DOL or its component
    agency "has reason to believe that disclosure of the
    information could reasonably be expected to cause
    substantial competitive harm," id. S 70.26(d)(2)(ii).26 The
    regulations also state that the agency "shall afford a
    business submitter a reasonable period within which to
    provide . . . a detailed statement of any objection to
    _________________________________________________________________
    26. The DOL regulations also require notification when "[t]he business
    submitter has in good faith previously designated the information as
    commercially or financially sensitive information." 29 C.F.R.
    S 70.26(d)(2)(i).
    16
    disclosure"; such statement must "specify all grounds for
    withholding any of the information under Exemption 4." Id.
    S 70.26(e).
    According to the DOL, these regulations required it to
    notify the 80,000 affected businesses of OSHA Data's FOIA
    request so that the DOL could fulfill its responsibility to
    determine whether the information in question was subject
    to disclosure or whether it instead came under the
    confidential commercial information exemption to FOIA.
    C. Resolution of Issues Raised on Appeal
    OSHA Data argues that the District Court's assessment
    of the costs to OSHA Data was erroneous for two reasons:
    first, because these costs were not the type of costs
    encompassed by the statutory and regulatory definitions of
    "review costs," and second, because the agency had not
    shown a need for the notification procedures that led to the
    imposition of these projected costs. In furtherance of its
    first claim, OSHA Data asserts that the "initial examination
    of a document," for which review costs can be charged, 5
    U.S.C. S 552(a)(4)(A)(iv), should be narrowly construed, and
    that the predisclosure notification and evaluation are not
    part of this initial examination. The construction urged by
    OSHA Data, in effect, equates "initial examination" with an
    "initial step" in the process.27 The DOL argues that the
    "initial examination" includes all relevant steps taken by
    the agency culminating in its decision as to whether the
    information is subject to disclosure or is instead exempt.
    DOL asserts that "initial examination" refers to the entire
    _________________________________________________________________
    27. OSHA Data states that "[i]n order to assert the need to notify
    business submitters, [the DOL] must have already conducted its ``initial
    examination' " and thus cannot charge for any"additional" review costs.
    OSHA Data Br. at 30. Although OSHA Data does not (and cannot)
    dispute the fact that commercial requesters, due to their responsibility
    to pay "review costs," are generally required to shoulder more of the cost
    burden of FOIA requests than are other requesters, OSHA Data has not
    identified what costs incurred by the agency in this case would qualify
    as review costs. Thus, while in theory OSHA Data seems willing to bear
    costs beyond the costs of duplication and search, OSHA Data has not
    suggested what would be the permissible "review costs" in this case if, as
    OSHA Data argues, the notification and evaluation costs are not such
    costs.
    17
    process leading to the disclosure decision, and that the
    word "initial" is used primarily to distinguish this process
    from the process of "reviewing the materials again for
    purposes of applying the same exemption on an
    administrative appeal." DOL Br. at 21.
    While FOIA does not set forth a definition of"initial
    examination," we conclude that its language does not
    support OSHA Data's interpretation. The statute refers to
    "initial examination of a document for the purposes of
    determining whether the documents must be disclosed
    under this section and for the purposes of withholding any
    portions exempt from disclosure under this section." 5
    U.S.C. S 552(a)(4)(A)(iv). It cannot be doubted that DOL
    proposes to undertake predisclosure notification and
    evaluation for exactly the purpose stated in the statute: to
    determine whether the documents must be disclosed or
    whether they are exempt from disclosure. Without
    complying with these notification procedures, the agency
    would have great difficulty engaging in any meaningful
    "review" so as to make that determination. Thus, we
    conclude that the statute suggests a broader reading of
    "initial examination," sufficiently broad to encompass the
    contested steps in the predisclosure decision making
    process.
    In addition, the DOL regulations described above are
    available to fill in the interstices in the statute; these
    regulations clearly suggest an interpretation of"initial
    examination" that mirrors the meaning suggested by the
    DOL. The regulations specifically state that costs may be
    assessed for "review at the initial level, i.e. the review
    undertaken the first time the documents are analyzed to
    determine the applicability of specific exemptions to the
    particular record or portion of the record," and clarify that,
    therefore, "a requester would not be charged for review at
    the administrative appeal level with regard to the
    applicability of an exemption already applied at the initial
    level." 29 C.F.R. S 70.40(d)(3). The regulatory language
    clearly supports the view that "initial examination" was
    being contrasted to "subsequent review on appeal," not the
    view that "initial examination" consists only of an agency's
    first internal look at the requested records. OSHA Data has
    18
    not challenged the validity of these regulations, and we will
    adopt the meaning apparent to us under the regulations'
    plain language. We therefore conclude that the expenses of
    predisclosure notification and evaluation are the types of
    expenses to which the term "review costs" was meant to
    apply.
    OSHA Data next contends that, regardless of whether
    notification costs fall within the general ambit of "review
    costs," the costs in this case should not be charged to
    OSHA Data because it was unnecessary for the agency to
    incur them. OSHA Data claims that the DOL had no reason
    to notify -- that is, that there is no basis for the DOL's
    determination that the information in question might give
    the agency "reason to believe that disclosure of the
    information could reasonably be expected to cause
    substantial competitive harm," the trigger for mandatory
    notification specified by the applicable regulations. 29
    C.F.R. S 70.26(d)(2)(ii).
    OSHA Data is, in essence, contesting the propriety of the
    agency's resort to the notification procedures. FOIA
    explicitly provides a right of action for requesters to contest
    an agency's ultimate decision to withhold data. See 5
    U.S.C. S 552(a)(4)(B) (giving the district court jurisdiction,
    "[o]n complaint," to "enjoin the agency from withholding
    agency records and to order the production of any agency
    records improperly withheld"). It is well established that
    requesters can challenge the costs charged to them. See,
    e.g., 5 U.S.C. S 552(a)(4)(A)(vii) (referring to an "action by a
    requester regarding the waiver of fees"). We construe OSHA
    Data's argument, then, as an argument that the
    assessment of "review costs" includes within it some
    determination that these review costs were reasonably or
    appropriately incurred.28 We will accordingly examine, as
    did the District Court, the DOL's basis for its decision to
    _________________________________________________________________
    28. It is important to note that in this appeal, OSHA Data does not
    challenge the amount of the predisclosure costs estimated by the DOL;
    rather, OSHA Data challenges the agency's determination that it was
    necessary to incur notification and evaluation costs at all.
    19
    incur the notification and evaluation costs that it claims as
    "review costs."29
    As the District Court recognized, the DOL has provided
    several justifications for its decision to pursue predisclosure
    notification, all of which go toward assessing the risk of
    "substantial competitive harm." The DOL gives several
    reasons why it believed that some of this specific
    information might eventually be deemed to qualify as
    confidential under Exemption 4. First, the DOL had
    previously represented to submitters that it would maintain
    the confidentiality of their responses.30 See A. at 18-25. The
    DOL has also presented evidence that legislators and
    businesses consider information of this sort to be
    confidential because of its risk of causing "substantial
    competitive harm" if disclosed. See, e.g., A. at 143-44
    (Letter from Rep. Cass Ballenger, Chairman, Subcommittee
    on Workforce Protections, Committee on Economic and
    _________________________________________________________________
    29. The district courts clearly have de novo review over the ultimate
    agency decision to withhold records. See 5 U.S.C. S 552(a)(4)(B).
    However, the parties have provided no guidance as to what standard of
    review a district court would employ in evaluating the reasonableness of
    the agency's intermediate decision to pursue predisclosure notification.
    Is
    this a case of an agency interpreting its own regulations (here, the
    predisclosure regulations) that might entail Chevron deference? See
    Chevron v. Natural Resources Defense Council, Inc. , 
    467 U.S. 837
    , 842-44
    (1984); Auer v. Robbins, 
    519 U.S. 452
    , 461-63 (1997). Or is it a situation
    where the courts review an adverse agency action for arbitrariness or
    caprice as provided for by the Administrative Procedure Act? See 5
    U.S.C. S 706(2)(A). Or does the de novo FOIA standard apply? We need
    not decide this question, for we cannot say that the agency erred, under
    any standard of review, in making the decision to undertake
    predisclosure notification.
    30. The DOL asserts that, if the requested information were deemed to
    have been provided voluntarily by submitters, rather than provided
    pursuant to a compulsory regulation, the DOL would have an even more
    heightened responsibility to keep the information confidential. See DOL
    Br. at 33-34 (citing Critical Mass Energy Project v. NRC, 
    975 F.2d 871
    ,
    879-880 (D.C. Cir. 1992) (en banc)). Because wefind that the DOL had
    ample justification for its decision to pursue predisclosure notification
    even under the assumption that the DOL compelled submitters to
    provide it, we need not reach the question whether the information was
    in fact provided voluntarily or by regulatory compulsion.
    20
    Educational Opportunities, to Charles Bowsher,
    Comptroller General of the United States, Nov. 12, 1996)
    (outlining confidentiality concerns stemming from the
    specific Data Collection Initiative at issue in this case); A. at
    196, 200-01 (Declaration of DOL official Emily Sheketoff,
    Apr. 27, 1998) (describing the basis for the confidentiality
    concerns expressed by representatives of Goodyear, one of
    the companies submitting Data Initiative Collection data).
    More important, as the District Court noted, at least one
    federal court has held that information similar to the
    workplace data in question here was competitively sensitive
    and therefore confidential within the meaning of Exemption
    4. See Westinghouse Elec. Corp. v. Schlesinger , 
    392 F. Supp. 1246
    , 1249 (E.D. Va. 1974), aff 'd, 
    542 F.2d 1190
    (4th Cir. 1976) (superseded by statute on other grounds,
    see CNA Fin. Corp. v. Donovan, 
    830 F.2d 1132
    , 1141 &
    n.62 (D.C. Cir. 1987)). The District Court concluded that
    Westinghouse provided support for DOL's contention that
    "[t]he information sought by OSHA Data could give a
    submitter's competitors insight into the productivity, hours
    worked, market share and production," and that the
    disclosure of such information could cause the submitter
    "substantial competitive harm." A. at 337 n.7. We agree. In
    Westinghouse, the District Court for the Eastern District of
    Virginia held that information appearing in a business's
    equal employment opportunity workforce report and
    affirmative action plan, could, if disclosed, enable
    competitors to calculate (via "reverse engineering") that
    business's labor costs and profit margins. See
    Westinghouse, 
    392 F. Supp. at 1249
    . Similarly, argues the
    DOL, a competitor could use information about a
    business's number of employees and employee work-hours
    to calculate estimates of that company's labor costs and
    productivity, which would give that competitor valuable
    inside information to assist its pricing strategies.
    In fact, previous litigation concerning the Data Collection
    Initiative itself has touched on confidentiality concerns. See
    American Trucking Assocs. v. Reich, 
    955 F. Supp. 4
    , 6
    (D.D.C. 1997) (noting employers' concerns about the
    confidentiality of the Data Collection Initiative). The DOL
    maintains that the District Court's order for injunctive relief
    21
    in American Trucking depended in part upon OSHA's
    assurance that it would keep the survey data for internal
    use only. See DOL Supp. App. at 3 (District Court order
    granting injunction, American Trucking Assocs. v. Reich,
    D.D.C. Civ. No. 96-552 (TPJ), Mar. 18, 1997); see also A. at
    200 (Declaration of DOL official Emily Sheketoff, Apr. 27,
    1998).31
    The issue before us as we examine this early stage of the
    DOL's process is whether disclosure of the information
    sought could lead to substantial competitive harm. The
    evidence produced was sufficient for this purpose. We are
    not faced with the ultimate issue for the agency, namely
    whether the information in the Count I and II requests was
    actually confidential and therefore covered by Exemption 4,
    and we take no position on this question.32 However, as the
    _________________________________________________________________
    31. In addition, we cannot fault the agency's decision to exercise caution
    in making its determination whether the requested information was
    exempt from disclosure. As the DOL points out, the consequences of an
    agency's wrongful disclosure of records can be serious. The predisclosure
    notification regulations mandate notification and evaluation whenever
    the agency has "reason to believe that disclosure of the information
    could reasonably be expected to cause substantial competitive harm." 29
    C.F.R. S 70.26(d)(2)(ii). A submitter that believes that its information
    was
    wrongfully disclosed when that information should have been withheld
    can bring a "reverse FOIA" suit against the agency under the
    Administrative Procedure Act. See Chrysler Corp. v. Brown, 
    441 U.S. 281
    , 318 (1979). Wrongful disclosure of information protected under
    Exemption 4 can even lead to criminal liability for an agency under the
    Trade Secrets Act, 18 U.S.C. S 1905. See CNA Fin. Corp. v. Donovan, 
    830 F.2d 1132
    , 1151-52 (D.C. Cir. 1987). While the fact that wrongful
    disclosure can lead to agency liability cannot, standing alone, justify
    the
    agency's decision to undertake notification (under such a rationale, an
    agency could potentially justify mandatory notification whenever
    commercial information of any kind, no matter how innocuous, is
    requested), surely it is appropriate for the agency to consider its
    responsibility not to wrongfully disclose confidential information as well
    as its responsibility to disclose all information whose disclosure is
    mandated by FOIA.
    32. As Magistrate Judge Cavanaugh acknowledged, one can imagine
    information that is far more commercially sensitive than the information
    requested in Counts I and II. See A. at 188-89 (Transcript of Motion,
    Apr. 21, 1998, at 38-39).
    22
    District Court found, the evidence is clearly sufficient to
    surpass the much less onerous threshold of showing that
    the DOL acted appropriately in concluding that it had
    "reason to believe that disclosure of the information could
    reasonably be expected to cause substantial competitive
    harm," 29 C.F.R. S 70.26(d)(2)(ii).33 This standard for
    triggering mandatory predisclosure notification is obviously
    much less burdensome than the standard for justifying an
    ultimate withholding of information under Exemption 4.
    See supra note 24 (describing National Parks standard). The
    DOL need not show that the disclosure of the information
    requested would cause substantial competitive harm, but
    must show only that the DOL had "reason to believe that
    disclosure . . . could reasonably be expected to cause
    substantial competitive harm."34 The totality of the evidence
    of the potential for substantial competitive harm that was
    available to the DOL at the time it assessed the need for
    predisclosure notification was sufficient to give the DOL
    reason to believe that substantial competitive harm might
    reasonably result from some of the disclosures in question.
    In summary, we conclude that the estimated $1.7 million
    costs for notification and evaluation were "review costs"
    properly chargeable to OSHA Data in connection with the
    notification procedure authorized by agency regulations,
    and that the District Court correctly dismissed Counts I
    _________________________________________________________________
    33. We note that the breadth of the Count I and II requests -- seeking
    information for over 80,000 companies -- makes it difficult for the DOL
    to determine whether the information falls under Exemption 4 without
    going through predisclosure notification. The inquiry into the likelihood
    of substantial competitive harm is a fact-based inquiry that evaluates
    the circumstances of the employer submitting the information. See CNA
    Fin. Corp. v. Donovan, 
    830 F.2d 1132
    , 1152-53 (D.C. Cir. 1987).
    Particularly in a case where, as here, the agency collecting the
    information is collecting it for the first time, see DOL Supp. App. at 11
    (Declaration of DOL official Miriam McD. Miller, May 12, 1998), it is
    unrealistic to expect the agency to be familiar with the competitive
    circumstances of each of 80,000 submitters without contacting those
    submitters for further information.
    34. It is clear that in order to prove that the agency had "reason to
    believe X," the agency need show something less than "X is true." (Here,
    "X" = "disclosure could reasonably be expected to cause substantial
    competitive harm.")
    23
    and II of the Amended Complaint based on OSHA Data's
    inability to pay these costs.
    D. Mootness of Count III
    OSHA Data concedes that it has received the specific
    data that were the subject of the Count III request.
    Ordinarily, the receipt of the data would render Count III
    moot. See, e.g., National Resources Defense Council, Inc. v.
    NRC, 
    680 F.2d 810
    , 814 (D.C. Cir. 1982) (stating that a
    federal court "is not empowered to decide moot questions
    . . . or to declare, for the government of future cases,
    principles or rules of law which cannot affect the result as
    to the thing in issue in the case before it") (quoting
    California v. San Pablo & Tulare R.R. Co., 
    149 U.S. 308
    , 314
    (1893)) (internal quotation marks omitted). However, OSHA
    contends that Count III falls into the narrow category of
    controversies that are "capable of repetition, yet evading
    review" and thus constitute an exception from the
    application of the mootness doctrine. See Press-Enterprise
    Co. v. Superior Ct. of Cal., 
    478 U.S. 1
    , 6 (1986).
    In order to qualify for this exception, OSHA Data has the
    burden of meeting both parts of the following test:"(1) the
    challenged action was in its duration too short to be fully
    litigated prior to its cessation or expiration, and (2) there
    was a reasonable expectation that the same complaining
    party would be subjected to the same action again." United
    States v. Criden, 
    675 F.2d 550
    , 553 (3d Cir. 1982) (quoting
    Murphy v. Hunt, 
    455 U.S. 478
    , 482 (1982)) (additional
    citation and internal quotation marks omitted). For much
    the same reasons as the District Court, we conclude that
    OSHA Data has not satisfied the second part of that test.
    OSHA Data alludes in its brief to a DOL "policy" of
    withholding the last 30 days of information from the
    computer file tapes provided in response to FOIA requests
    for data on violations uncovered during workplace
    inspections. See OSHA Data Br. at 9. However, the only
    record evidence that might point to such a policy consists
    of two letters from OSHA Data to DOL officials. See A. at 41
    (Letter from Matthew M. Carmel, President of OSHA Data,
    to DOL official Cathryn Goedert, Aug. 5, 1997); A. at 46
    (Letter from Matthew M. Carmel to DOL official Bill Wright,
    24
    Sept. 12, 1997). The first letter states that a DOL employee
    had informed OSHA Data that there was a "new policy" of
    not providing inspection records for establishments that
    were issued violations during the 30 days prior to the tape
    creation date. A. at 41. OSHA Data has not provided any
    direct documentation of such a policy. Although OSHA
    surely need not prove, at the complaint stage, that such a
    policy exists, the mere allegation of an agency policy does
    not satisfy OSHA Data's burden of showing that it is
    reasonably likely to be subject to the 30-day blackout
    period in the future. Similarly, the second letter, which
    alludes to a previous DOL "offer" to exclude most requested
    information within the 30-day period, does not satisfy this
    burden. OSHA Data does not include in the record the
    letter from the DOL in which this offer was allegedly made.
    As the District Court observed:
    OSHA Data argues there are, and will continue to be,
    quarterly requests for information contained in the
    derived file. OSHA Data further argues that because
    the Department of Labor has not stated it will cease
    the practice of withholding the thirty day data, there is
    a reasonable expectation OSHA Data "will be subject to
    the same action." Accordingly, OSHA Data asserts
    Count Three is not moot.
    OSHA Data, however, has failed to demonstrate that
    any of its future information requests will be denied as
    a result of the operation of the alleged thirty day
    exclusionary period.
    * * *
    OSHA Data commenced this matter on 22 January
    1998. Since the commencement of this matter and the
    filing of the OSHA Data Motion for Summary
    Judgment, several quarters have passed. No argument
    has been presented by OSHA Data to suggest that any
    of the intervening quarterly requests for information
    were impacted by the operation of the alleged thirty
    day exclusionary policy. A. at 344-46 (District Court
    Letter-Opinion, May 10, 1999). Thus, the District Court
    concluded, OSHA Data had not shown a reasonable
    25
    expectation that it would be subjected to the alleged
    blackout period. See id. at 346-47.35
    We agree with the District Court's assessment. OSHA
    Data has not satisfied its burden of establishing that Count
    III falls under the category of claims that are"capable of
    repetition, yet evading review." We will therefore affirm the
    District Court's dismissal of Count III as moot.
    V. Conclusion
    For the foregoing reasons, we will affirm the judgment of
    the District Court.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    _________________________________________________________________
    35. On appeal, OSHA Data has moved to supplement the record with a
    letter from DOL official Cathryn Goedert to OSHA Data President
    Matthew M. Carmel. OSHA Data asserts that this letter demonstrates
    that the DOL has applied the 30-day blackout policy to subsequent
    OSHA Data quarterly FOIA requests. We will deny OSHA Data's motion
    to expand the record. OSHA Data had ample opportunity to present this
    letter to the District Court, but failed to do so; the letter, which is
    dated
    December 4, 1998, came into OSHA Data's possession well before the
    District Court heard argument on OSHA Data's motion for summary
    judgment on Count III in February 1999 and ruled on this motion in
    May 1999. Our role as a Court of Appeals is to review the decision made
    by the District Court; we will do so based on the evidence presented to
    the District Court.
    26
    

Document Info

Docket Number: 99-5457

Filed Date: 7/26/2000

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (18)

Westinghouse Electric Corporation v. Schlesinger , 392 F. Supp. 1246 ( 1974 )

Chrysler Corp. v. Brown , 99 S. Ct. 1705 ( 1979 )

Critical Mass Energy Project v. Nuclear Regulatory ... , 975 F.2d 871 ( 1992 )

louis-ditri-and-marie-k-ostenrieder-v-coldwell-banker-residential , 954 F.2d 869 ( 1992 )

13-fair-emplpraccas-868-12-empl-prac-dec-p-11208-westinghouse , 542 F.2d 1190 ( 1976 )

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