Judge denies request to force OSHA to withhold records

You-Jin Han | Freedom of Information | Feature | September 20, 2011

A federal court in Florida refused to order the U.S. Occupational Safety and Health Administration to withhold videos and photographs depicting a SeaWorld trainer’s death, explaining that it would not intervene before the agency reached a decision regarding the release of the materials.

The family of animal trainer Dawn Brancheau, who was pulled underwater by an Orlando SeaWorld whale and drowned, filed for an injunction to prevent OSHA from releasing graphic videos and photographs of the incident to the public. They contended the materials should be withheld under the Freedom of Information Act and the Privacy Act.

But U.S. District Judge Gregory Presnell ruled that the federal statutes did not permit the court to block OSHA before the agency had a chance to decide whether it would release the documents. The court also held that the definition of "records" in the federal Privacy Act did not include the requested materials.

OSHA, which investigated the incident and obtained photographs and video recordings depicting the rescue efforts and death, received three requests for the death scene materials. The agency stated that the requests “would be processed” in compliance with FOIA regulations, but did not immediately issue a decision on whether it would release the materials.

In the interim, the victim's family sought to force the agency to notify them if any more requests for the materials were received.

The court did not agree with the family and said that “[t]he legal basis for the Plaintiffs’ request is murky, to put it mildly.”

The court also noted that FOIA does not contain a mechanism allowing a private party to prevent a government agency from disclosing materials. Brancheau's family argued that this was, however, possible under the Administrative Procedure Act, a federal statute which establishes guidelines for agency procedures. The court explained that under that act, it only had the authority to review final agency action. Because OSHA had not yet decided whether it would release the death scene materials, the court lacked jurisdiction to review the case.

The court concluded that given the nature of the requested materials, it was “highly unlikely that they would qualify as ‘records.’” The Privacy Act defines records within its reach as those containing certain educational, medical, criminal, employment-related, or financial information about an individual.

Attorneys for the family could not be reached for comment as to whether they will renew their motion if OSHA determines the records are subject to release.