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Brancheau v. Sec'y of Labor, No. 11-1416, 2012 WL 140239 (M.D. Fla. Jan. 18, 2012) (Presnell, J.).  Holding:  Dismissing, without prejudice, plaintiffs' claim that OSHA's previous release of a summary of a video depicting the incident violated the APA; and dismissing plaintiffs' remaining APA claims with prejudice.  At the outset, the court concludes that two of plaintiffs' claims, namely, that "[d]efendants' denial of the Plaintiffs' request to block any possible release of the video; and . . . [d]efendants' refusal to declare the Performance Video[, an underwater video of the incident,] as exempt from disclosure under FOIA," "cannot be challenged by way of a reverse FOIA suit."  The court finds that "[a] plaintiff seeking to prevent disclosure under FOIA has no remedy until the agency determines that it will release the requested information" and, here, OSHA has made no such determination.  As to plaintiffs' claim premised on OSHA's "refusal to provide notice to the Plaintiffs whenever someone makes a future FOIA request for the Performance Video," the court finds that, unlike the notification requirements for "confidential commercial information" set forth in Executive Order 12,600, "[n]o party has suggested language in any other statute, regulation or order that would require OSHA to notify the Plaintiffs when a request for the Performance Video is made."  As such, the court determines that "Plaintiffs have no standing under the APA to challenge OSHA's refusal to provide notice that the law does not require it to provide, as they are not 'adversely affected or aggrieved . . . within the meaning of the relevant statute.'" 

With respect to plaintiffs' claim concerning OSHA's "intention to release the OSHA written summary to anyone making a FOIA request for the Performance Video," the court first finds that "Plaintiffs have not identified any information in OSHA's summary that is not present in the longer, more detailed summary [of the incident] compiled by the [local] Sheriff's Office," which is in the public domain.  The court, however, rejects defendants' argument that "given that the Sherriff's Office had released its (more detailed) summary before OSHA released its summary, OSHA was obligated to release its summary, and the decision to do so could not have been arbitrary and capricious."  Rather, the court states that it cannot make such a finding where there is no evidence showing that OSHA was aware that the other summary had been publicly disclosed.  However, the court finds that plaintiffs have failed to meet their burden to show that OSHA acted arbitrarily and capriciously because they could not point to a "law that required withholding of the information."  Furthermore, the court notes that plaintiffs cannot rely on FOIA exemptions for this purpose because "FOIA exemptions allow a government agency to withhold documents, but do not require withholding."

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