United States District Court, District of Columbia
RONALD J. BONFILIO, Plaintiff,
OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, Defendant.
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE
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.
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.
an initial search, an attorney for the Department of
Labor-OSHA's parent agency-identified eleven OSHA
investigations that might contain information responsive to
Bonfilio's request. Decl. of Joseph P. Plick Supp.
Def.'s Mot. Summ. J. (“Plick Decl.”) ¶
12.The attorney sent the relevant
investigation numbers to OSHA's Baltimore-Washington Area
Office-where the files were located-and asked it to determine
whether the agency instituted those investigations following
a death or injury. Id. ¶ 13. The field office
could locate ten of the eleven identified investigation
files. Id. ¶ 14. Of those ten, three had been
initiated in response to an injury, and none in response to a
death. Id. ¶ 15 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.” 5 U.S.C. § 552(b)(6),
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.
Id. ¶ 22. The Department reached out to the
OSHA investigator in charge of that case, who explained the
absence. Id. ¶ 23. OSHA had found Fort Myer to
be in compliance with all applicable health and safety
regulations at the time of the incident and, when that is the
case, OSHA's record-retention regulations provide for
destruction of files after three years. Id.
¶¶ 23-25; Decl. of Nadira Janack Supp. Def.'s
Mot. Summ. J. (“Janack Decl.”) ¶¶ 16-
17. Bonfilio's FOIA request had come more than three
years after OSHA's finding of compliance.
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
Adequacy of OSHA's Search.
crux of Bonfilio's argument here is that it is
“inconceivable” that OSHA has no records of
deaths at the four construction companies, and therefore that
its search must have been inadequate. The Court disagrees.
adequacy of a search is not judged by its
“fruits.” Iturralde v. Comptroller of
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Rather, to
establish the adequacy of a search under FOIA, an agency must
simply “show that it made a good faith effort to
conduct a search for the requested records, using methods
which can be reasonably expected to produce the information
requested.” Oglesby v. Dep't of the Army,
920 F.2d 57, 68 (D.C. Cir. 1990).
or declarations that “adequately describe the
agency's search”-such as by stating the search
terms used and type of search conducted-satisfy this burden.
Id. An agency does not need to search all of its
records, but it must “aver that all files likely to
contain responsive materials (if such records exist) were
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.
assertions are “accorded a presumption of good faith,
” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1200 (D.C. Cir. 1991), unless they are “called into
question by contradictory evidence in the record or by
evidence of agency bad faith, ” Consumer Fed'n
of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C.
Cir. 2006). No such evidence exists here. Bonfilio's
arguments to the contrary are not confined to the adequacy of
OSHA's search per se, but instead attack its
recordkeeping policies more generally. The outline of his
theory is as follows: OSHA is required by statute to
investigate workplace deaths and it must create a case file
for any such investigation. Bonfilio knows (through news
reports) of at least one death on a Fort Myers worksite in
the time period covered by his FOIA request. Yet OSHA
produced no records in response to his first request. OSHA
thus necessarily conducted an inadequate search,
unlawfully withheld responsive records in its possession, or
destroyed them. And if it destroyed them, then its
destruction was unlawful. See Pl.'s Opp'n
Mot. Summ. J. at 4-8.
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, 920
F.2d at 68.
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, 355 F.3d
675 (D.C. Cir. 2004) (per curiam) (“[T]he agency's
failure to turn up a particular document, or mere speculation
that as yet uncovered documents might ...