MSHA Demands For Company Files Upheld By Federal Appellate Court

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Congress has given . . . MSHA powerful tools to protect miners. Those tools include demands to inspect documents.” That is what the United States Court of Appeals for Seventh Circuit recently held in Big Ridge vs. Federal Mine Safety and Health Review Commission.

As part of planned audits of accident, injury, and illness records at 39 mines, MSHA had demanded that the mines open their employee workers’ compensation and medical records for inspection. When certain mine operators refused, MSHA issued citations and civil penalties of $4,000 per day for every day the records were being withheld.

Judicial Review

The Federal Mine Safety and Health Review Commission upheld MSHA’s actions and the case proceeded to the U.S. Court of Appeals. Agreeing with the Commission, the court rejected arguments of the operators that MSHA was exceeding its authority and depriving them of due process under the U.S. Constitution. The court stated: “We agree with the Commission that MSHA acted within its statutory and constitutional authority both in demanding information that would permit MSHA to verify the accuracy of mine operators’ injury reports and in issuing citations and monetary penalties when mine operators refused to comply.

Citing a history of deaths and injuries in mines, the court said that the Federal Mine Safety and Health Act gave MSHA “broad authority.” The court noted that the Act authorizes MSHA to inspect and investigate for several purposes, including “obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes of accidents, and the causes of diseases and physical impairments . . . and determining whether there is compliance with the mandatory health or safety standards or with any citation, order, or decision.”

The court cited language in the Act that: “every operator of a coal or other mine shall establish and maintain such records, make such reports, and provide such information, as the Secretary [MSHA] . . . may reasonably require from time to time to enable him to perform his functions.” The court concluded that MSHA can require operators to produce employee records “beyond those required to be maintained” in order for MSHA to verify what individual operators are reporting.

The court held that demands for records are a valid exercise of authority by MSHA, and emphasized that MSHA’s injury and illness reporting regulations specifically state: “Upon request by MSHA, an operator shall allow MSHA to inspect and copy information related to an accident, injury or illness which MSHA considers . . . relevant and necessary to a determination of compliance with the reporting requirements.”

The court rejected arguments from individual miners who joined in the case that their rights of privacy were being violated by MSHA’s demands for access to their medical records. The court stated that MSHA is a public health agency and, as such, is entitled to such information. The court also rejected arguments referring to state laws saying that the “Mine Act preempts any conflicting state law; therefore no state law confidentiality requirement may limit MSHA’s Mine Act authority to demand records.”

Impact of Decision

This decision does not establish that MSHA may demand any company record at any time. It does not deprive companies of all privacy related to business records. However, the decision does indicate that when it comes to medical records, MSHA is entitled to operator compliance with reasonable requests for documents that MSHA deems necessary to determine compliance with mandates for reporting accidents, injuries, and illnesses. In other words, according to the court, MSHA is not confined to accepting operator reports at face value, but rather is entitled to see the records lying behind what the company has reported to MSHA.

The accident, injury, and reporting regulations are unique in important respects. While there are other records required by the Act (such as workplace examinations, training records, and records of unresolved mobile equipment defects) that must be produced to prove compliance, there is no other regulation that specifically articulates a requirement for an operator to “allow MSHA to inspect and copy information.” This court of appeals decision does not resolve all issues for all circumstances––such as whether MSHA can demand non-mandated maintenance records––but operators can expect MSHA to make broader demands in other instances. In every case, however, the key determinant of the propriety and enforceability of the demand will most likely be the reasonableness of the request under the circumstances existing at the time MSHA makes a records request.

The MSHA/OSHA Report is not a comprehensive newsletter and does not cover a full spectrum of agency news. Rather, it focuses on one or more selected items of particular interest.

Note: This article was published in the August 2013 issue of the MSHA/OSHA Report.

- See more at: http://www.ogletreedeakins.com/publications/2013-08-21/msha-demands-company-files-upheld-federal-appellate-court#sthash.lDaxMEUR.dpuf

Congress has given . . . MSHA powerful tools to protect miners. Those tools include demands to inspect documents.” That is what the United States Court of Appeals for Seventh Circuit recently held in Big Ridge vs. Federal Mine Safety and Health Review Commission.

As part of planned audits of accident, injury, and illness records at 39 mines, MSHA had demanded that the mines open their employee workers’ compensation and medical records for inspection. When certain mine operators refused, MSHA issued citations and civil penalties of $4,000 per day for every day the records were being withheld.

Judicial Review

The Federal Mine Safety and Health Review Commission upheld MSHA’s actions and the case proceeded to the U.S. Court of Appeals. Agreeing with the Commission, the court rejected arguments of the operators that MSHA was exceeding its authority and depriving them of due process under the U.S. Constitution. The court stated: “We agree with the Commission that MSHA acted within its statutory and constitutional authority both in demanding information that would permit MSHA to verify the accuracy of mine operators’ injury reports and in issuing citations and monetary penalties when mine operators refused to comply.

Citing a history of deaths and injuries in mines, the court said that the Federal Mine Safety and Health Act gave MSHA “broad authority.” The court noted that the Act authorizes MSHA to inspect and investigate for several purposes, including “obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes of accidents, and the causes of diseases and physical impairments . . . and determining whether there is compliance with the mandatory health or safety standards or with any citation, order, or decision.”

The court cited language in the Act that: “every operator of a coal or other mine shall establish and maintain such records, make such reports, and provide such information, as the Secretary [MSHA] . . . may reasonably require from time to time to enable him to perform his functions.” The court concluded that MSHA can require operators to produce employee records “beyond those required to be maintained” in order for MSHA to verify what individual operators are reporting.

The court held that demands for records are a valid exercise of authority by MSHA, and emphasized that MSHA’s injury and illness reporting regulations specifically state: “Upon request by MSHA, an operator shall allow MSHA to inspect and copy information related to an accident, injury or illness which MSHA considers . . . relevant and necessary to a determination of compliance with the reporting requirements.”

The court rejected arguments from individual miners who joined in the case that their rights of privacy were being violated by MSHA’s demands for access to their medical records. The court stated that MSHA is a public health agency and, as such, is entitled to such information. The court also rejected arguments referring to state laws saying that the “Mine Act preempts any conflicting state law; therefore no state law confidentiality requirement may limit MSHA’s Mine Act authority to demand records.”

Impact of Decision

This decision does not establish that MSHA may demand any company record at any time. It does not deprive companies of all privacy related to business records. However, the decision does indicate that when it comes to medical records, MSHA is entitled to operator compliance with reasonable requests for documents that MSHA deems necessary to determine compliance with mandates for reporting accidents, injuries, and illnesses. In other words, according to the court, MSHA is not confined to accepting operator reports at face value, but rather is entitled to see the records lying behind what the company has reported to MSHA.

The accident, injury, and reporting regulations are unique in important respects. While there are other records required by the Act (such as workplace examinations, training records, and records of unresolved mobile equipment defects) that must be produced to prove compliance, there is no other regulation that specifically articulates a requirement for an operator to “allow MSHA to inspect and copy information.” This court of appeals decision does not resolve all issues for all circumstances––such as whether MSHA can demand non-mandated maintenance records––but operators can expect MSHA to make broader demands in other instances. In every case, however, the key determinant of the propriety and enforceability of the demand will most likely be the reasonableness of the request under the circumstances existing at the time MSHA makes a records request.

The MSHA/OSHA Report is not a comprehensive newsletter and does not cover a full spectrum of agency news. Rather, it focuses on one or more selected items of particular interest.

Note: This article was published in the August 2013 issue of the MSHA/OSHA Report.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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