September 1, 2011
Part 50 Audits
Is any document off limits?
by Whitney G. Clegg
Does the Mine Safety and Health Administration (MSHA) have carte blanche access to the files and records kept in your mine office? Since 1979, the agency has traditionally followed the Sewell Coal decision when a mine operator challenged personnel record demands. However, two recent decisions issued in the Big Ridge and Spartan Mining cases may signal a change in MSHA’s approach.
MSHA’s authority to inspect personnel records and other documentation is found in 30 C.F.R. Part 50. The regulation provides that MSHA shall have the right to inspect and copy information it considers relevant to verify a § 50.11 report or to determine compliance with the reporting requirements of Part 50. See 30 C.F.R. § 50.41.
In Sewell Coal Co., 1 FMSHRC 864 (1979), the issue was whether the Secretary was authorized, without obtaining a warrant, to examine a mine operator’s personnel records, which contained information both related and unrelated to reporting requirements under Part 50. Recognizing that there is a “strong judicial reluctance to read into a statute an authorization for a warrantless search of records not specifically required to be kept by law” and concluding that the Mine Act “does not authorize wholesale warrantless, nonconsensual searches of files and records in a mine office,” then-Chief Administrative Law Judge James A. Broderick held that Part 50 “does not authorize the Secretary to inspect without a warrant…personnel files containing medical and other information, some related and some unrelated to accidents, injuries, illnesses reportable under Part 50.” Id. at 872-873.
Thirty-one years after the Sewell Coal decision, in October 2010, MSHA began a nationwide initiative to conduct 39 compliance audits under the authority of Part 50. Each targeted mine was presented with a letter requesting, among other documents, “all payroll records and time sheets for all individuals working at [the] mine” and “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 [the mine’s] 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 [the] mine for the period of July 1, 2009 through June 30, 2010.” Various operators challenged these requests, questioning whether MSHA had the authority to demand, without a warrant, that the operator produce the requested medical and employment records and other company information pursuant to an audit under Part 50.
In two recently issued opinions, MSHA’s requests for payroll, medical records, and workers’ compensation injury records were upheld as a legitimate use of the Part 50 audit procedures by Administrative Law Judge (ALJ) Kenneth R. Andrews. See Big Ridge, Inc., et al., Docket No. LAKE 2011-116R (ALJ Andrews May 20, 2011); Spartan Mining Co., et al., Docket No. WEVA 2011-540R (ALJ Andrews May 23, 2011). Both cases are currently on appeal.
In the Big Ridge and Spartan Mining decisions, Judge Andrews held that the purpose of Part 50 is to implement MSHA’s authority not only to investigate but also to obtain and utilize information pertaining to accidents, injuries, or illnesses occurring at mines.
In reaching this conclusion, the ALJ held that the plain language of the statute and regulations creates a duty on the part of the operator to maintain and provide records to MSHA so that the agency may determine compliance with any requirements of the Act.
In order to develop effective health standards, control dataflow, and discover violations, MSHA was allowed to inspect and/or copy any information the agency thought might be relevant and necessary to determine compliance with reporting requirements. This includes medical records, employment records, and other company records. Additionally, the data would allow the agency to independently verify the information that had been submitted to it with regard to accidents, injuries, or illnesses.
According to Judge Andrews, “[i]t is the operator who possesses the means to ensure complete and accurate reporting. Absent an audit of company records, MSHA must rely solely on the information provided by the operator’s safety manager. If the company does not cooperate in the process, there can be no assurance that the safety and health information compiled by MSHA is correct.” Big Ridge at p. 9. Stated a little differently, “[a]bsent all of the documents and information [requested by MSHA], there can be no effective, independent verification of the information submitted by the operators to MSHA.” Spartan Mining at p. 10.
In reaching his decision, Judge Andrews distinguished the 30-year-old Sewell Coal case by holding that the actions of the MSHA inspectors under the nationwide initiative/Part 50 audits did not constitute warrantless searches; rather, they were simple requests that the operators produce certain documents, and the requests were found to be reasonably limited by both content and time. The ALJ reasoned that, because an inspector would not be rummaging through the files of an operator, there would be little chance that unrelated private information would be released.
Judge Andrews also noted that MSHA is listed as a public health agency exempt from the Health Insurance Portability and Accountability Act (HIPAA) requirements. He found that because “Congress has allowed the agency access to the records…in a pervasively regulated industry, there cannot be an expectation of privacy.” Big Ridge at p. 14; Spartan Mining at p. 15. He further dispelled employee privacy concerns by finding that the agency had a compelling need to verify reports and determine compliance with reporting obligations, and this need outweighs any interest the operator may have in privacy.
The Big Ridge and Spartan Mining decisions represent one ALJ’s ruling on this issue. The decisions are not binding in other cases, and, in the absence of controlling precedent, the issue remains undecided. However, these two recent decisions by Judge Andrews should prompt operators to evaluate requests for medical records and other non-required documentation on a case-by-case basis. When confronted with a request for such information, an operator must decide whether to voluntarily produce for inspection the non-required documentation knowing that it could possibly be used in support of violations against the mine. If the operator refuses, it may find itself facing enforcement action from the agency because of its refusal to do so.
Whitney G. Clegg is a member of Jackson Kelly PLLC’s Wheeling, W.Va., firm, working within the Occupational Safety and Health Practice Group.
She can be reached at 304-233-4000 or firstname.lastname@example.org.