By Caroline Davidson-Hood and Mark Savit

The Federal Mine Safety and Health Review Commission recently issued an unprecedented decision permitting MSHA to demand the production of employment and medical records from mine operators in conjunction with an audit of the mines’ injury and accident reports.  

Thirty-three years ago an MSHA inspector decided that he was entitled to review the employment, personnel and medical records contained in the mine office file cabinets during a regular inspection. The next day when he tried to resume his review of mine files, the mine owner refused to let him in the office. MSHA issued a citation, it was contested and eventually vacated by a judge in Sewell Coal Inc. The core of the judge’s decision in that case was that because sensitive information is contained in personnel files, including medical records, MSHA did not have the authority to “go rummaging around” in mine records. He articulated a rule that had come to be relied on by mine operators for the next 30-plus years—MSHA is only entitled to those documents that are required to be maintained by law.  

MSHA has tested the rule from time to time, gaining limited ground to require mine operators to provide certain non-mandated information. In BHP Copper, the mine operator refused to give MSHA an injured employee’s contact information, claiming the information was confidential and not required to be kept by law. The court disagreed and determined that, in very limited circumstances applicable to that case, the mine operator is required to furnish basic information such as the addresses of witnesses in the course of an accident investigation. MSHA has ignored the limitations of BHP and has attempted to rely on that decision to undergird its demand for non-mandated documents. On occasion, however, the Solicitor’s office has backed-off these requests when reminded that BHP does not provide MSHA with the document-collecting authority it seeks. But in 2010, MSHA took its document requests to a whole new level. In the course of a paperwork audit, it issued letters to multiple large operators demanding:

All medical records, doctor’s slips, worker compensation filings, sick leave requests or reports, drug testing documents, emergency medical transportation records and medical claims forms in your possession relating to accidents, injuries or illnesses that occurred at the mine or may have resulted from work at the mine for all individuals working at your mine for the period of July 1, 2009, through June 30, 2010.

The mine operators balked, refusing to comply with such a broad request for confidential information. MSHA responded by issuing citations and closure orders for failure to abate the citations and comply with the document request. The operators took the case to court claiming that MSHA only had the authority to demand those documents required to be maintained by law and that if MSHA wanted access to confidential medical records, it is required to issue a formal rule in the Federal Register requiring mine operators to keep such records. Miners intervened in the suit to try to stop MSHA from accessing their personal information.

The Commission determined that in order for MSHA to properly conduct its audit, it required the non-mandated documents and thus had the authority to demand the specified medical and personnel records from mine operators.

The Commission found the Mine Act gives MSHA the authority to conduct investigations, which includes the right to collect “information related to health and safety conditions.” Further, the Act requires a mine operator to “provide such information, as the Secretary may reasonably require from time to time to enable him to perform his functions.” Based on this and other regulatory language, the Commission deferred to the Secretary’s assertion that the requested documents were “reasonably required” to carry out the audit. The idea expressed by Judge Andrews and adopted by the Commission is that MSHA cannot exclusively rely on information provided by mine operators in auditing accident and injury reporting. MSHA must look at other non-mandated documentation to ensure the mine is complying with its reporting requirements. Therefore the Commission found MSHA’s document request to be “reasonable.”

Commissioner Duffy dissented. He agreed there are circumstances where MSHA should have access to confidential medical records, but this need must be balanced with the mine operators’ right to know what its compliance responsibilities are and the rights of operators and miners in the confidential nature of the documents. Commissioner Duffy insisted the appropriate balance between these important principles could only be struck if MSHA took the time and effort to issue a published rule through the notice-and-comment process. The majority of the Commission did not agree.

The Big Ridge Inc. decision is not without important limitations. The opinion specifies that express, written requests tailored to a limited time period that directly relate to compliance with MSHA regulations is reasonable. With a nod to Sewell Coal, the Commission agreed that actual entry into a mine office to “rummage around” in file cabinets would be unreasonable.

In summary, if MSHA presents a mine operator with a document request, each of these requests should be carefully reviewed to make sure they are specific, written, limited in scope and “reasonable.” This begs the question: what is “reasonable”? It is at best unclear and will have to be determined on a case-by-case basis. MSHA’s authority to access documents has been debated for 33 years, and while the Commission’s decision in Big Ridge Inc. purports to broaden MSHA’s authority to demand documents during an accident and injury reporting audit—the debate will continue. In fact, Peabody has taken the issue on appeal to the Seventh Circuit, which will be the next tribunal to weigh in on MSHA’s authority to demand non-mandated documents.

Davidson-Hood is an associate with Patton Boggs LLP. She can be reached at 202-457-5257 or cdavidsonhood@pattonboggs.com. Savit is a partner in the Denver office of Patton Boggs LLP. He can be reached at msavit@pattonboggs.com.