Trade secrets confidentiality

Under 1903.9(a), yes — information reported to or obtained by OSHA that contains or might reveal a trade secret is treated as confidential. The regulation implements Section 15 of the Act and protects such information from public disclosure except to other officers or employees carrying out the Act or when the information is relevant in a proceeding under the Act. See 1903.9(a) and the general 1903.9 trade secrets provision.

Under 1903.9(c), the employer may identify areas in the establishment at the commencement of the inspection that contain or might reveal trade secrets. This designation should be made when the inspection begins so the Compliance Safety and Health Officer (CSHO) is aware that information from those locations may require confidential treatment. See 1903.9(c) and the general trade secrets rule at 1903.9.

If the CSHO has no clear reason to question the identification, those materials must be labeled "confidential—trade secret" and not disclosed except as allowed by Section 15 of the Act. That explicit protection covers information obtained in identified areas, including all negatives and prints of photographs and environmental samples. See 1903.9(c) and 1903.9(d).

Under 1903.9(a), only other officers or employees concerned with carrying out the Act, or persons to whom the information is relevant in a proceeding under the Act, may receive trade-secret information. In other words, disclosure is limited to those with a need to know for enforcement or adjudicative purposes, and otherwise the information remains confidential. See 1903.9(a) and the main 1903.9.

Under 1903.9(b), improper disclosure by a federal officer or employee is punishable under section 1905 of title 18, U.S. Code, which can include a fine of up to $1,000, imprisonment of up to one year, or both, and removal from office or employment. This statute makes unauthorized publication or disclosure of trade-secret or confidential business information a federal offense. See 1903.9(b) and the general 1903.9 trade secrets provision.

Under 1903.9(d), yes — at the employer’s request, any authorized employee representative under 1903.8 who will enter an area containing trade secrets must be an employee who actually works in that area or an employee authorized by the employer to enter that area. This lets employee participation occur while protecting proprietary information. See 1903.9(d) and 1903.8.

If there is no such representative or authorized employee, the CSHO must consult with a reasonable number of employees who work in that area about safety and health matters. This ensures employees’ safety concerns are heard while still protecting trade-secret information. See 1903.9(d) and 1903.8.

No — while the employer may identify areas that contain or might reveal trade secrets at the start of the inspection, the CSHO can question an employer's identification if there is a clear reason to do so. If the CSHO has cause to doubt the designation, the materials may not receive blanket confidential treatment. See 1903.9(c) and the main 1903.9.

Yes — photographic negatives, prints, and environmental samples taken from employer-identified trade-secret areas are to be labeled "confidential—trade secret" and not disclosed except as permitted by Section 15 of the Act. The regulation explicitly includes those items in the confidentiality protection. See 1903.9(c) and 1903.9.

If trade-secret information becomes relevant in a proceeding, the Secretary, the Commission, or the court will issue orders as appropriate to protect its confidentiality. That means the document can be used as evidence but the decisionmaker must take steps to limit public disclosure consistent with Section 15 of the Act. See the confidentiality and proceeding protections in 1903.9(b) and 1903.9(a).

Yes — information that contains or might reveal a trade secret is confidential, and an employer can identify specific materials or the areas where they are located at the start of the inspection; such items should be handled as confidential if the CSHO does not clearly question the designation. The regulation’s protection applies to information obtained in connection with an inspection, whether it’s in documents, samples, or other forms. See 1903.9(c) and 1903.9(a).

Filing a notice of contest does not remove the confidentiality protections for trade secrets — Section 15 protections continue to apply, and any use of trade-secret information in contested proceedings remains subject to protective orders issued by the Secretary, the Commission, or the court. Additionally, OSHA's enforcement posture while a citation is under contest is governed by agency policy (for example, OSHA generally suspends investigatory activity once a proper contest is filed), but OSHA retains authority to take actions for imminent dangers or other necessary enforcement steps. See 1903.9(a), 1903.9(b), and OSHA’s policy on contesting citations in the 2023 letter of interpretation at https://www.osha.gov/laws-regs/standardinterpretations/2023-09-11.

Under 1903.9(d), the employer can request that the authorized representative be an employee who works in that area or an employee the employer authorizes to enter the area; this allows employee participation while limiting outsiders' access. The employer should make that request at the start of the inspection so OSHA can coordinate access consistent with the regulation. See 1903.9(d) and 1903.8 regarding authorized employee representatives.

OSHA must keep the material confidential and restrict disclosure to officers or employees involved in carrying out the Act or when necessary in a proceeding; when materials are used in proceedings, the Secretary, the Commission, or the court will issue protective orders as appropriate to safeguard confidentiality. Improper disclosure by a federal employee is subject to penalties under 1903.9(b). See 1903.9(a) and 1903.9(b).