August 1, 2012
Commission’s decision requires operators to hand over miners’ information, including documents not required to be retained.
Mine operators now have less freedom to properly refuse to turn over documents demanded by inspectors. A recent decision by the Federal Mine Safety and Review Commission (the Commission), upheld the Mine Safety and Health Administration’s (MSHA) right to make intrusive document requests of operators. The Commission’s decision has been appealed to the Seventh Circuit Court of Appeals.
On May 24, 2012, in a 4-1 decision, the Commission decided Peabody Midwest Mining LLC et. Al, in which it permitted MSHA to demand operators’ medical and payroll records that are not required to be maintained. The Commission considered the consolidated appeal of two earlier cases decided in favor of MSHA, brought by subsidiaries of Peabody Energy Corp. and Massey Energy Co. (now owned by Alpha Natural Resources) (collectively, the operators). A group of miners also intervened on behalf of the operators and sought to prevent disclosure of the information claiming that it invaded miners’ privacy rights.
The impetus for the case was MSHA’s 2010 nationwide effort in which it conducted audits of 39 mines to verify operator compliance with Part 50 reporting requirements. Under Part 50, operators are required to notify MSHA of all injuries that occur at all mine sites subject to MSHA’s jurisdiction. For purposes of the audit, MSHA requested not only accident and production reports that are required to be maintained, but also payroll records and miners’ medical records for the prior year. These additional requests for information were not required to be maintained under the Mine Act and had not previously been sought in any nationwide initiative. The demand for medical records was particularly expansive and included “[a]ll 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 your possession relating to accidents, injuries, or illnesses that occurred at the mine or may have resulted from work at the mine” for the prior year.
On appeal to the Commission, the operators argued that the information requests exceeded MSHA’s authority and rule, and comment rulemaking was necessary to procure the production of the information sought.
In support of its requests, MSHA relied on section 103(h) of the Mine Act and 30 CFR § 50.41. Both provisions grant MSHA broad authority to request information from operators.
In its decision, the Commission upheld the rulings compelling disclosure, determining that MSHA has authority to access the information at issue. The Commission concluded that 103(h) of the Mine Act and Section 50.41 independently authorize the demands for information. With respect to 103(h), the Commission construed the statute to give MSHA “authority to request whatever information she deems relevant and necessary,” even though it is not otherwise required to be maintained or disclosed to MSHA, so long as the requests were “reasonable.” The Commission held that its decision permitting the information requests was bolstered by similar language found elsewhere in the Mine Act, as well as its legislative history.
The Commission also determined that MSHA properly relied on 30 CFR § 50.41 for authority, finding that its text and preamble supported the Secretary’s request for information. Section 50.41 permits the Secretary to obtain information to ensure compliance with accident reporting regulations where “relevant and necessary.” The Commission determined that the material sought was relevant and necessary to a determination of compliance because it will ensure that operators are properly complying by fully and accurately reporting accidents as required.
The Commission held that its holdings, with respect to the Mine Act and Section 50.41, were consistent with its past precedent concluding that the process and information sought were distinguishable from prior cases in which MSHA information requests had been denied or circumscribed. It held, instead, that the requests for material herein were limited in time and scope and were, therefore, permissible.
Last, the Commission rejected the intervener’s privacy challenges, as well as the operators’ constitutional challenges to MSHA’s information requests. On the contrary, the Commission determined that MSHA’s requests were “narrowly focused, clearly explained, and limited.”
Commissioner Duffy was the lone dissenter. In a well-crafted opinion, he concluded that the auditing policy and the process by which it was carried out were unconstitutional. He determined that MSHA’s limited authority to conduct warrantless searches did not encompass the information sought herein. Commissioner Duffy’s core concern was that MSHA was requiring operators to turn over information that was not required to be collected or maintained by statute or regulation. He examined prior decisions and determined that even where warrantless searches were permitted, they only encompassed such documents as were specifically required to be maintained. In the absence of sufficient restrictions on the “unbridled discretion of executive and administrative officers,” he determined that it was necessary for MSHA to proceed via notice and comment rulemaking to “set forth requirements for the generation, maintenance, and release of such records.” Commissioner Duffy also would have ruled in favor of the miners, finding that the request for their personal medical records necessarily impinged upon legitimate privacy interests.
For mine operators going forward, unless the Seventh Circuit overturns the Commission’s decision, it is clear that MSHA has more power to demand records of operators. While the expansive language used by the Commission describing the scope of MSHA’s right to seek documents will likely give operators pause, it does not mean that any operator should make a spare set of keys to the filing cabinet for the inspector. On the contrary, the Commission emphasized that, while MSHA has broad authority to seek documents not otherwise required, the request must be reasonable and the information sought must be relevant and necessary to a legitimate agency purpose. Moreover, given the strength of Commissioner Duffy’s dissent, it is unlikely that we have heard the last of this case.
Jason P. Webb is an associate in Jackson Kelly PLLC’s Pittsburgh office. He can be reached at 412-434-8055 or firstname.lastname@example.org.