DOL Wage and Hour Division WHISARD FOIA Request

Dear Records Custodian, Pursuant to the federal Freedom of Information Act, 5 U.S.C. § 552 et seq., we request the following records:

An export of all tables from the WHISARD database from fiscal years 2012 to 2024, excluding columns containing PII or free-form narrative text.

We note that at least one prior FOIA request resulted in the provision of data from the following tables:
“CASE_ACT_EER_SUM”
“CASE_ACT_EER_VIOL”
“CASE_ACT_SUMMARY”
“CASE_CMP_ASSMNT”
“CASE_CL_SUMMARY”
“CASE_EMPLOYER”
“CASE_EMPLOYEE”
“CASE_ER_SITES”
“KASE”
“V_ACT”
“V_ACT_VIOL_CODES”
“V_ACT_VIOLATIONS”
“V_BUS_ORG_TYPE”
“V_BUS_STATUS”
“V_CASE_ACTIONS”
“V_CASE_STATUS”
“V_COMPLY_STATUS”
“V_CONCLUDED_REASON”
“V_COUNTY_CODES”
“V_ER_EE_CNT_RANGES”
“V_ER_TYPE”
“V_EST_STATUS”
“V_EST_TYPE”
“V_INJURY_LEVEL”
“V_INVEST_TOOLS”
“V_LEVEL”
“V_NAICS”
“V_SPEC_COVERAGE”
“V_STATE_CODES”
“V_VIOL_REASON”
“WH_OFFICE”
“CASE_EMPLOYEES”

Given our research so far, however, we believe that additional tables and columns from WHISARD are disclosable. For example, we believe that at least some data from the following forms are stored in WHISARD, are not present in the prior FOIA records, and yet should be producible:

WH-56 Summary of Unpaid Wages: Name, Address, Period Covered by work week Ending Dates, Act(s), Gross Amounts Due.
WH-75 Homeworker Handbook: Firm’s name, Address, Industry, Day and time work week begins, Required minimum wage, Date issued to homeworker, Start, Stop, Hours for Day 1 to Day 7.
WH-103: Notice to Employer-Employment of Minors Contrary to the Fair Labor Standards Act: Establishment Trade Name, Establishment Legal Name, Product or Services, NAICS code, Total employees, Total number of minors illegally employed, Local or Migrant, Child labor standard(s) violated, Period(s) of illegal employment, Age(s) at start of violation(s).
WH-124 Notice of violations of other laws: Agency Name, Date, Nature of possible violations, Remarks.
WH-500 MSPA Compliance Action Report: Case Number, State, County, District Office, Address, City, Zip, NAICS code, Type of Assignment, Investigation Program, Compliance Action, Status of Compliance, Migrant Crew, Seasonal Crew, Will There Be Further Action On This Case, Compliance Hours, Period of Investigation, Itinerary of FLC sections 1 - 31.
WH-519a MSPA and H-2A housing safety and health checklist (ETA 654.404): Date, Location of Housing Inspected, Housing Capacity, Number of Occupancy, Identity of Housing Owner/Provider, Address of Housing Owner/Provider, Identity of Person in Charge of Housing, Address of Person in Charge of Housing, Current Permits or Licenses, Variances, Violation, Regulatory Sector, Number Exposed, Comments
WH-519b MSPA and H-2A housing safety and health checklist (OSHA 1910.142): Date, Location of Housing Inspected, Housing Capacity, Number of Occupancy, Identity of Housing Owner/Provider, Address of Housing Owner/Provider, Identity of Person in Charge of Housing, Address of Person in Charge of Housing, Current Permits or Licenses, Variances, Violation, Regulatory Sector, Number Exposed, Comments
WH-520 Housing Occupancy Certificate: Location of housing inspected, Description of housing units and number of units, Name of owner of housing units, Address of owner of housing units, Name of individual(s) in charge, Address of individual(s) in charge, Name of Farm Labor Contractor, Address of Farm Labor Contractor, Date inspection was requested, Expected date of occupancy from, Expected date of occupancy to, Date of inspection, Date certificate expires, Special Conditions, Date Issued
WH-561 Citation and Notification of Penalty: Issuance date, Case ID, Subject of investigation, Inspection Date(s), Business address, Inspection site, Violation cite, Description/Penalty, Date by Which Violation Must Be Abated
WH-562 OSHAct Field Sanitation Inspection Report: Case ID number, Investigation subject, Inspection date(s), Business address, Inspection site, Maximum number of hand-labor employees, Investigation date number of hand-labor employees, 29 CFR 1928.110(c)(2)(v) applicable, Items 10-23 for each violation observed
WH-563 Notice of Alleged Imminent Danger (OSHAct): Case ID number, Name of employer, Address of employer, Inspection site description, Description of alleged imminent danger, Date of signed.
WH-601 Potential H-2A Violations Checklist: Name of person investigated, Address of person investigated, Case ID, Date, Potential H-2A violation(s) 01, 02, 35, 36, 37, 38, 39, 26, 51, 06, 09, 10, 13, 14, 15, 18, 19, 27, 28, 29, 41, 20, 22, 23, 24, 25, 04, 05, 05a, 05b, 07, 08, 11, 16, 17, 17a, 17b, 12, 32, 33, 40, 42, 44, 48, 49.
WH-1504 MSPA and H-2A Transportation Safety Checklist: Date, VIN, Vehicle Owner, Make, Model, License Plate Number, State, Responsible Party, MSPA Jointly Responsible Party, Driver(s)/Operator(s) Valid Doctor’s Certificate, Violation(s), Number Exposed

We request these records in their native digital formats and not in formats that degrade the accessibility of the records, such as tabular data converted to PDF or Word files. If converting the native digital format to another high-fidelity format, such as CSV or Excel, please take care not to introduce formatting inconsistencies or errors, which can occur in the conversion process (for example, encoding errors or the inclusion of internal unescaped quotation marks in CSV files). Should the records above represent certain values as numeric codes or abbreviations that are not self-explanatory, we additionally request all records necessary to interpret those codes and abbreviations.

Fee Waiver Request:
A waiver of search and review fees is appropriate here because disclosure of the requested information is in the public interest under 5 U.S.C. § 552(a)(4)(A)(iii) and 45 C.F.R. § 5.54(a), (b)(1)-(2), and because the request is not primarily in our commercial interest, 45 C.F.R. §§ 5.45(a), (b)(3)(ii).

This Request is Not Primarily in Our Commercial Interest:
The requested information is not being sought for commercial purposes. 45 C.F.R. § 5.54(a). We are news media requesters that can and will “effectively convey information to the public.” 45 C.F.R. § 5.54(b)(2)(ii).

Production of Responsive Records on a Rolling Basis:
In the event that a portion of the present request is completed before the full request is completed, we ask that the records be produced on a rolling basis.

Limitation of Fees:
We are also entitled to a limitation of fees because we are members of the news media. 45 C.F.R. § 5.53(b); 5 U.S.C. § 552(a)(4)(A)(ii)(II). Accordingly, even if our application for a waiver of all fees is denied, we are entitled to a limitation of fees. As a news media requester, we are“entitled to search time, review time, and up to 100 pages of duplication” and can be charged only duplication fees after the first 100 pages or its cost equivalent. 45 C.F.R. § 5.53(b). We request that the information be provided in its native electronic format, and thus there should be no duplication fees.

Request for Explanation of Withholdings and Redactions:
If this request is denied in whole or in part, please provide a reasonable description of any withheld materials and a justification for all such withholdings that includes reference to the specific FOIA exemptions authorizing withholding and specific reasons why such exemptions apply. 45 C.F.R. § 5.31. An agency shall withhold information only if “the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i). (Per Attorney General Garland’s March 15, 2022 memorandum, “In case of doubt [regarding foreseeable harm or legal bar to disclosure], openness should prevail.”We therefore request that if the agency determines that an exemption applies, specific reasons be provided as to why disclosure would harm any interest protected by such exemption. An agency shall also “consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible” and “take reasonable steps necessary to segregate and release nonexempt information.” Id. at § 552(a)(8)(A)(ii). We therefore request that the agency release all segregable portions of otherwise exempt material.

We look forward to your reply within the FOIA-specified timeframe of 20 working days. Please let us know if there are any clarifications we can make to make this request easier and/or quicker to complete.

Sincerely,
Adrian Nesta

To Whom It May Concern,

This is an appeal of fee status for FOIA request 2025-F-03622 filed with the DOL on 12/4/2024. Specifically, I am appealing fee category determination that I am an "other requester" rather than a journalist entitled to media requester status under a plain reading of the FOIA statute.

The FOIA statute directs that fees shall be limited "to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by a representative of the news media."

The 2007 FOIA amendments further define the news media category to include: "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The Government may also consider the past publication record of the requester in making such a determination."

I meet the definition of a media requester. I am requesting on behalf of the Data Liberation Project, an initiative to bring more datasets of public value into the public domain, especially for journalistic purposes. Records obtained by the Data Liberation Project are released publicly, for all to use. Our recent work has also been done in partnership with a range of national and local news media partners, including Stanford's Big Local News, the Connecticut Post, KTSM NBC's El Paso, TX affiliate and KVIA ABC's El Paso, TX affiliate. Below are a few of the recent articles the Data Liberation Project work has contributed to:

• A 2/22/24 story from the Connecticut Post titled "USDA reports monkeys at Connecticut's Beardsley Zoo died after delay in reaching vet" accessible here: https://www.ctpost.com/news/article/feds-exotic-monkeys-died-beardsley-zoo-delayed-18677390.php
• A 4/3/23 story from KTSM NBC's El Paso, TX affiliate titled "Colony of prairie dogs disappears from El Paso Zoo, according to USDA report" accessible here: https://www.valleycentral.com/news/colony-of-prairie-dogs-disappears-from-el-paso-zoo-according-to-usda-report/

This information will also shed light on the operations or activities of the government in relation to the DOL’s Wage and Hour Division's labor law violation investigations — particularly the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), among others — and the degree to which the Department has (or has not) ensured their quality and completeness. These data from WHISARD will also provide more detail on the scope, depth, and effectiveness of these investigations. For this reason, 45 C.F.R. § 5.54(b)(1), and because all of the WHISARD data is not already in the public domain, 45 C.F.R. § 5.54(b)(2)(i), this request is “not primarily in the commercial interest of the requester.” 45 C.F.R. § 5.54(b)(3)(ii). As such, and because disclosure “is likely to contribute significantly to public understanding of the operations or activities of the government” (5 U.S.C. § 552(a)(4)(A)(iii)), we respectfully request that you waive all applicable fees.

I am using MuckRock’s service to manage and track my request, but that should not affect my fee category. How a requester submits FOIA requests is immaterial to that individual's fee category. Rather, what matters is the purpose to which the requester intends to put the documents. I have no commercial interest in these documents and am requesting them purely for news gathering purposes. I have no intent to sell or otherwise profit from the information therein, but rather intend to post them in full online and write about them so that the public can better understand the workings of this agency and its operations. I will derive only journalistic benefit from the requested documents.

I thank you for your prompt attention, and let me know if you have any additional questions.

Kindly,
Adrian