Disclosure in simplified proceedings

The Secretary must give the employer copies of the narrative (Form OSHA 1‑A) and the worksheet (Form OSHA 1‑B) or their equivalents within 21 days after the case is designated for Simplified Proceedings. See 2200.206(a)(1).

• These copies must be provided free of charge and may be paper or equivalent electronic reproductions as allowed by the rule.
• If you don’t receive them within 21 days, you should raise the issue with the Judge promptly (see related remedies in 2200.206(a)(4)).

OSHA must provide the employer reproductions of any photographs or videotapes that the Secretary anticipates using at the hearing within 30 days after the case is designated for Simplified Proceedings. See 2200.206(a)(2).

• The rule covers images the Secretary plans to use at hearing, not every image ever taken.
• If the Secretary intends to use edited or redacted versions, the employer may challenge any withholding or redaction under 2200.206(a)(4).

Exculpatory evidence—material that tends to show the employer is not liable or that mitigates liability—must be provided to the employer within 30 days after the case is designated for Simplified Proceedings. See 2200.206(a)(3).

• Examples include witness statements that contradict the Secretary’s theory, test results favorable to the employer, or documents showing compliance with a requirement.
• If you believe the Secretary has relevant exculpatory evidence that was not produced, raise the issue with the Judge promptly under 2200.206(a)(4).

The employer should formally claim the Secretary improperly withheld or redacted the material, and the Judge must act expeditiously on that claim. See 2200.206(a)(4).

• File a motion or raise the objection in the case record so the Judge can decide.
• The Judge will review the withheld material (often in camera) and rule whether the withholding/redaction was justified or whether disclosure is required.
• Keep a clear list of the requested items and dates to help the Judge resolve the dispute quickly.

When the employer raises an affirmative defense under 2200.207(b), the Judge will order the employer to disclose to the Secretary such documents relevant to that defense as the Judge deems appropriate under 2200.206(b).

• The scope is determined by the Judge and is limited to documents relevant to the affirmative defense asserted.
• Be prepared to identify and produce records that substantiate your defense (e.g., training records, inspection logs, maintenance reports).
• If you believe a document should be protected, raise that concern with the Judge so the Judge can consider protective measures.

If the Secretary misses the disclosure deadlines, the employer should notify the Judge and seek relief because the rules require those disclosures within the stated timeframes. See 2200.206(a)(1) and 2200.206(a)(2).

• Typical remedies include motions to compel disclosure, requests for sanctions, or requests for an extension of trial deadlines if prejudice occurred.
• The Judge has discretion to order production, limit use of undisclosed evidence, or provide other relief to cure prejudice.

The Secretary can claim privilege or confidentiality, but if the employer objects, the Judge must act expeditiously to determine whether the withholding or redaction was proper under 2200.206(a)(4).

• The Judge may review the disputed material in camera and decide whether disclosure is required.
• If the Judge orders disclosure, the Judge can also fashion protective orders to limit use or public release of sensitive material.
• For related guidance about posting or public access to OSHA records, see OSHA’s interpretation about website postings at https://www.osha.gov/laws-regs/standardinterpretations/2004-09-27-0.

Settlement agreements are not automatically kept confidential; some major agreements are posted on OSHA’s web site while most settlement agreements are not posted but remain subject to FOIA. See the OSHA interpretation at https://www.osha.gov/laws-regs/standardinterpretations/2004-09-27-0 for details.

• The interpretation explains OSHA posts major settlement agreements on the public website but most settlements are not posted; however, they can still be disclosed under FOIA.
• The Review Commission’s rules at 29 CFR 2200.100(c) also require settlement agreements to be posted similarly to citations and notices of contest (see 2200).

Yes; the rule requires copies of the narrative (Form OSHA 1‑A) and the worksheet (Form OSHA 1‑B) or their equivalents, so electronic or other formats that convey the same information satisfy the requirement under 2200.206(a)(1).

• “Equivalents” means any reproduction that contains the same substantive information (for example, an electronic report or a differently formatted narrative) so long as it allows the employer to understand and respond to the case details.
• If the format impedes your ability to review the material, raise that with the Judge under 2200.206(a)(4).

The Secretary must provide reproductions of any photographs or videotapes the Secretary anticipates using at the hearing within 30 days, but the Secretary may initially provide edited or redacted versions if claiming confidentiality—subject to challenge by the employer under 2200.206(a)(4).

• If the employer believes the edits or redactions conceal material evidence, the employer can ask the Judge to review the original material and order disclosure if appropriate.
• Keep a record of what was provided and when to help the Judge resolve any dispute quickly.

The rule specifically requires copies of the narrative and worksheet and reproductions of photographs/videotapes; it also requires disclosure of any exculpatory evidence in the Secretary’s possession, which can include witness statements and interview notes if they are exculpatory under 2200.206(a)(1)–(3).

• If witness statements or notes are relevant and favorable to the employer, they must be produced as exculpatory evidence within 30 days.
• If such documents exist but are not produced, the employer should raise the issue with the Judge under 2200.206(a)(4).

Employers generally cannot force OSHA to remove posted citations, penalties, or major settlement agreements from the public website because the posted material is public information and subject to FOIA, as explained in OSHA’s interpretation at https://www.osha.gov/laws-regs/standardinterpretations/2004-09-27-0.

• The interpretation clarifies OSHA posts major agreements but most settlement agreements are not posted; all are potentially subject to public disclosure under FOIA.
• If confidentiality is claimed for a specific document, raise that claim with OSHA or the Judge as appropriate; FOIA and the Judge’s protective measures govern whether material stays confidential.

When the employer raises an affirmative defense under 2200.207(b), the Judge, not the parties, decides and orders the employer to disclose such documents relevant to the affirmative defense as the Judge deems appropriate under 2200.206(b).

• The employer should be prepared to identify documents supporting its defense because the Judge may order production.
• Protective orders or limitations on use can be sought if the disclosed material is sensitive.

The 21‑day and 30‑day disclosure periods begin on the date the case is designated for Simplified Proceedings. See 2200.206(a)(1) and 2200.206(a)(2).

• Track the designation date carefully so you know when each disclosure deadline will expire.
• If you do not receive required materials by these deadlines, promptly notify the Judge and seek relief under 2200.206(a)(4).

Yes—unless a protective order or confidentiality limitation has been entered by the Judge, an employer may share exculpatory evidence provided by the Secretary with counsel, experts, or others preparing the defense; protective restrictions, if any, will be imposed by the Judge under 2200.206(a)(4).

• If you expect to need wide dissemination for defense preparation, request a protective order that permits sharing with specific people while protecting sensitive information.
• If OSHA claims a document is confidential, raise the dispute so the Judge can decide whether disclosure and sharing are permitted.

If you suspect undisclosed exculpatory evidence, promptly inform the Judge and file a motion or claim asserting that the Secretary improperly withheld evidence so the Judge can act expeditiously under 2200.206(a)(4).

• Provide specifics about what you believe exists and why it is exculpatory (who, what, when).
• Ask the Judge to review the Secretary’s files in camera if necessary and to order production or impose sanctions if withholding was improper.

No; the specific disclosure obligations in 2200.206 apply when a case is designated for Simplified Proceedings. See 2200.206.

• Other case tracks (non‑Simplified Proceedings) may have different discovery and disclosure rules under the Commission’s procedures, so check the applicable rules or ask the Judge what applies to your case.
• If in doubt, refer to the overall Review Commission rules at 2200 or consult counsel.

The employer must produce documents that the Judge orders as relevant to an affirmative defense; if the employer believes a specific document is irrelevant, it should explain that to the Judge, who will decide the scope under 2200.206(b).

• Object to production with a clear, specific basis and request a Judge’s ruling rather than unilaterally withholding documents.
• If a document contains sensitive non‑relevant material, request an in camera review or a protective order.

Yes; the rule explicitly states that the Secretary shall provide the employer, free of charge, copies of the narrative and worksheet or their equivalents within 21 days of designation for Simplified Proceedings under 2200.206(a)(1).

• This covers the cost of reproducing and delivering the required materials to the employer.
• If you are being charged for copies, raise the issue with OSHA and the Judge referencing this provision.

Upon receiving the disclosure materials, promptly review and catalog the narrative, worksheet, photos/video, and any exculpatory evidence; raise any missing items or redactions with the Judge immediately under 2200.206(a)(4).

• Create a checklist showing what was received, dates, and who provided it.
• Identify documents you will use in your defense and any gaps needing follow-up discovery or motions.
• If asserting an affirmative defense under 2200.207(b), be ready to disclose supporting documents as ordered under 2200.206(b).