In October 2010, MSHA began a nationwide initiative to conduct compliance audits under Part 50 of 30 C.F.R. As a part of these audits, inspectors provided operators with a letter requesting: (1) MSHA Form 7000-1 Accident Reports; (2) MSHA Form 7000-2 Employment and Production Reports; (3) all payroll records and time sheets for all individuals working at the mine; (4) the number of employees working at the mine for each quarter; (5) all medical records, doctor’s slips, worker compensation filings, sick leave requests or reports, drug testing documents, emergency medical transportation records, and medical claim forms in the operator’s possession relating to accidents, injuries or illnesses that occurred at the mine or may have resulted from work at the mine for all employees.
In both cases, the operator refused to provide medical records to MSHA and one operator refused to provide payroll records.
In his decisions (which were substantially similar), Judge Andrews begins his discussion of the issues by addressing the importance of reporting under Part 50 and how a mine’s incident rate is used to objectively view a particular mine’s record. The court states that knowing the “prevalence of specific types of injuries and their usual severity allows for more efficient allocation of agency resources in developing strategies not only for enforcement but also for training with the goal of improving the health and safety of miners.” While the Court was very concerned with the dangers of under-reporting under Part 50, it seemed less concerned with the problems of over-reporting:
Over-reporting would also result in inaccurate information and misallocation of resources. The mine would appear less safe than it actually is, and this could result in increased inspections. However, this would rarely be the concern to be addressed.
Given that medical records or workers’ compensation information are handled by human resources, the Court opined that there is at least the potential for relevant events to go unreported. The judge cited the testimony of the Acting Director of Accountability for MSHA, Peter Joseph Montali, noting the limited use of the medical records, payroll and time sheet records, and other information to cross-reference and verify the complete and accurate reporting of all required information. In a broad, sweeping statement, the Court stated that in order to “develop effective health standards, control the data flow and discover violations, MSHA is allowed to inspect and/or copy any information the agency thinks may be relevant and necessary to determine compliance with reporting requirements.” (emphasis added).
The Court distinguished these cases from Sewell Coal Company, 1 FMSHRC 864 (ALJ 1979), which held MSHA could not inspect the private personnel files of a mine, in the absence of a valid warrant. The Court reasoned that in Sewell, the MSHA inspector asked for direct access to the private personnel files of the company, but in the cases before the Court MSHA is simply requesting documents and was not “rummaging through the file cabinets of files of the operators.” Mine operators in the recent MSHA Part 50 audits were asked to search their own files for information, producing only documents meeting the specifics of the request.
While the operators argued these records were highly sensitive and private, and granting the Secretary access to them would violate the privacy rights of their employees, the Court found this argument unpersuasive and responded:
The disclosure of private medical information to a public health agency is a reasonable exercise of government responsibility over public welfare where it is related to occupational health and safety and does not violate any rights or liberties protected by the Fourteenth Amendment…..Further and more importantly, it may be concluded that the governmental interest in promoting mine safety far outweighs any interest the mine operators may have in privacy.
The Court importantly fails to mention three things. First, it fails to mention the privacy interest of the miners whose personal medical, payroll and other information are making it into the not-so-secure coffers of the Federal government. Though the Court points out the safeguards MSHA uses to prevent disclosure of private information are “adequate,” it acknowledges the procedures are not “fool-proof.” Second, the Court’s decision didn’t mention the very real possibility that providing this personal information may be in clear violation of state law, which could provide a private right of action to the miner against the operator for releasing the information. Finally, the Court fails to address the fact that MSHA’s warrantless search authority has been held constitutional in part because it is restricted and does not allow complete access to all records on the mine property. After Independence and Big Ridge, one is left to wonder what restrictions are left—aside from MSHA not being allowed to physically rifle through the file cabinets of an operator themselves.
While, overall the holdings in Independence Coal Company v. Secretary of Labor and Big Ridge, Inc. v. Secretary of Labor appear to expand the obligation to provide documents to MSHA, the holdings appear to be limited to the context of Part 50 audits. Operators should be warned that MSHA inspectors or investigators may cite either of these cases in the context of a general inspection or an accident, discrimination, or 110(c) investigation. These two decisions, however, are just the first chapter in what will inevitably be a long hard battle to preserve our rights from overarching government regulation.
Pryor is an associate with Patton Boggs LLP. She can be reached at 303-894-6145 or by e-mail at firstname.lastname@example.org.