FOIA Advisor

Testing

Q&A: Of Mice and Exterminators

Q&A (2017)Ryan MulveyComment

Q.  I recently sent an e-mail to an agency to request a Material Safety Data Sheet (MSDS) related to an extermination problem and a planned clean-up.  Is the right to request an MSDS the same as the right to request records under the FOIA, or do I need a special form?

A.  No, the right to request a Safety Data Sheet (SDS) is not the same as the right to access agency records under the FOIA.  The Occupational Safety & Health Administration (OSHA) and the Environmental Protection Agency (EPA) regulate the “right to know” about hazardous chemicals.  Under OSHA rules, manufacturers of hazardous materials are required to provide SDSs for their products to downstream commercial vendors and distributors.  These entities must then provide the SDSs to their employees.  Generally speaking, any employer (including a federal agency) would be required to provide its employees with "ready access" to SDSs in the workplace.  There is no standardized form to request a SDS.  You can read OSHA’s Hazard Communication Standard, 29 C.F.R. sec. 1910.1200, online.  The agency has also published a brief on the topic.

If you are not an employee of the agency in question, or if you want a SDS for a hazardous material that is being used by a private enterprise, you probably do not have a right of "ready access," let alone a right to immediate access "upon request."  The agency may still respond to your e-mail, but you could also file a FOIA request.  So long as the agency has a copy of the SDS, you should eventually receive it.  Alternatively, you may consider requesting the SDS directly from the manufacturer, though it is not required to respond to you.