Tuesday, November 14, 2006

Adam Finkel: Not Yielding

When last we left whistleblower and former OSHA official Adam Finkel, OSHA was refusing to give him the information he requested under two Freedom of Information Act requests to determine how much beryllium OSHA inspectors had been exposed to in the course of their inspections, and how many other OSHA employees may have developed signs of beryillium-related disease. OSHA was also refusing to give him chemical sampling data from inspections that he needs to determine whether OSHA has any kind of credible health targeting and sampling program, and if it is responding sensibly to chemical overexposures as the law intends. After a year and a half, he's gotten no response and has now filed a lawsuit.

Finkel, you may recall, was removed from his job as OSHA Regional Administrator in Denver in 2003 because he blew the whistle on the agency for not establishing a testing program for OSHA inspectors who were exposed to beryllium in the course of their inspections. Due to Finkel's efforts, OSHA tested a number of its inspectors and last year, The Chicago Tribune obtained an internal OSHA memo stating that ten OSHA employees out of 271 tested have confirmed postive results for beryllium sensitization.

Time moves on and OSHA has filed a legal brief in which the agency presents the reasons why it is refusing to give Finkel the information. Unfortunately, OSHA's excuses don't even pass the laugh test.

In order to figure out the lifetime beryllium exposure to each inspector, he must have the the identifying code of each inspector. And in order to determine whether OSHA is actually doing an adequate number of health inspections, levels of overall industry compliance with chemical standard, and other issues, he needs the names of the companies that were inspected and the names of the chemicals that were sampled.

OSHA, however, is refusing to give him the names of the companies, allegedly fearing that trade secrets will be released. (How a chemical wafting through the air, being inhaled by a worker constitutes a trade secret is beyond me. As Adam says, it's not like they'll be revealing the secret formula of Coca Cola.) For the first time, OSHA issue a Federal Register notice requesting information from companies about whether the requested information constituted a trade secret, and in case corporate America didn't get the hint, OSHA even sent memos to industry trade associations warning that “[t]here is reason to believe that the release of this data could include the confidential commercial or trade secret information that has not been previously disclosed to the public.”

The agency argues that an estimated 2% of companies inspected requested that the chemicals that were sampled be considered trade secrets, yet OSHA now claims that it never kept track of any of those alleged requests, and no one can come up with any examples of any business that ever claimed that the sampled chemicals were trade secrets. Nevertheless, OSHA says that Finkel's request would mean that agency staff would have to spend an estimated 1521 days to look through 73,000 enforcement case files to find the mysterious 2% that may have requested that the information be kept secret. Meanwhile, while searching (or not searching) for the elusive, probably imaginary 2%, OSHA sits on millions of valuable data points.

This, even though Finkel has gathered lots of examples over the past decades of researchers who have been given the exact same information that Finkel is requesting, and that OSHA is suddently considering to be a trade secret. (And he's looking for other examples of OSHA supplying chemical and company specific monitoring data to researchers -- or cases where such data has been declared a trade secret. You can contact him here.)

Then, in logic that makes the head spin, OSHA claims that it doesn't want to release information about the inspectors exposed to beryllium because may somewho figure out the names of the inspectors and get rich selling the information to employers who will then be able to deduce valuable information about which inspectors are tougher. (Why this information would be useful is beyond me, as employers don't get to choose their inspectors based on how well they do their jobs.) Adam points out that they're not exactly a bunch of Valerie Plames: the first thing inspectors do when they enter a workplace is introduce themselves and show their photo IDs.

Finally, the agency argues that the potential release of such data would cause more employers to force OSHA to get a warrant before inspecting -- also a rather questionable assertion, being as it's so easy for OSHA to get a warrant that few employers actually deny entry.

Menwhile, the public health community doesn't share OSHA's dim view of Dr. Finkel's efforts on behalf of workers. The American Public Health Association last week awarded Adam with the prestigious David P. Rall Award for Advocacy in Public Health. The Rall Award recognizes an individual "who has made outstanding contributions to public health through science-based advocacy, nationally or internationally."

I was fortunate to attend the ceremony where Adam gave his acceptance speech and explained a bit about what makes him tick:
At the risk of revealing the depths of my naïveté, however, I can simplify a career in science advocacy even further—I am drawn to try and take the least circuitous path to the truth. So far, it has been easy, in that my tendency towards precautionary analysis and my concern for workers have never come into conflict with what I see as true. The hard part has been working among and for individuals who treat the truth like it was the newest electronic gadget to be manipulated. I really believe that the casual lies beget the “big lies”—brought to you by “Mission Accomplished” banners and backed up by withholding of information, misuse of data, and the glorious tendency to write the press release first and then look for something, anything, to support it. If the agencies ever want to get back to their original regulatory and enforcement missions again, they had better staff them back up with people who indeed will advocate—but for something larger than their own career paths.
And finally, as those of us with parents and children know, we all come from somewhere and, hopefully, return the favor with the next generation:
Finally, I want to thank my family. My father Max has cheerfully (or so it has seemed to me) supported everything I’ve ever accomplished (and many things I’ve failed at as well). My Uncle Lou, who will be 95 in March, got his MPH at Johns Hopkins after World War II, and helped inspire me to choose public health and policy as a career. My wonderful wife Joanne has had to move her psychology practice from D.C. to Boulder to D.C. to Princeton during the past six years, and never blamed me despite this needless price of my advocacy. Most of all, I honor the hereditary gifts and life lessons I’ve received from my mother Mae, a retired ophthalmic nurse, who showed me how, and tried to show me when, to try to be the irresistible force or the immovable object. I often tell my daughter Maia that it’s a cruel fate of genetics to be both the second most stubborn person in the world and also in our little household, but I look forward (as I think you all should) to being on the same side of whatever causes she chooses to advocate for in the decades ahead. As Tennyson said, may those of us just starting out, and those of us “made weak by time and fate,” remain “strong in will/ To strive, to seek, to find, and not to yield.”
The full text of Adam's speech can be found here.