SECRETARY OF LABOR,
Complainant,

v.
KINGS ISLAND, DIVISION OF TAFT BROADCASTING COMPANY,
Respondent.

OSHRC Docket No. 82-1016

DECISION

Before: BUCKLEY, Chairman, and WALL, Commissioner.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act" or "the OSH Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. q 659(c).

I.

At issue is a single citation alleging a violation of 29 C.F.R. 1904.7(a). That regulation states that employers "shall provide" certain injury and illness records "upon request" to "any representative" of the Secretary, including a compliance officer engaged in a workplace inspection, "for inspection and copying. . . ."[[1]] The records that must be provided for inspection and copying include those that the employer is required to create and maintain on form OSHA No.200, the log and summary of occupational injuries and illnesses, or its equivalent.[[2]]

The record shows, and it is undisputed, that Kings Island refused to provide these records as required by section 1904.7. An OSHA compliance officer came to the employer's workplace in Kings Island, Ohio, in response to an employee complaint that "fog" used in a theatrical production at the American Heritage Theater had irritated the employee's eyes and upper respiratory system. The compliance officer did not present either an inspection warrant or an administrative subpena to Kings Island's representatives. He instead requested that Kings Island make available to him its OSHA form 200's. This request was not tailored to the reason for the inspection, i.e., the use of "fog" in the recent theatrical production. Rather, the compliance officer stated that he wished to review the forms kept over the past three years for "hygienic and environmental problems in general." Kings Island refused, stating that there was no probable cause for such a broad inspection. It asserted that the "fog" had been used for only slightly more than four months and that there were no entries in the log indicating any illness or injury as a result of its use. Kings Island further stated that it would consent only to an inspection of its premises and its records that was limited to the scope of the employee complaint about the "fog." The employer stated that it would not allow a broader inspection unless there was a search warrant or some other legal process was followed.

OSHA did not respond to this denial or access by obtaining an inspection warrant from a federal court or by exercising its authority under section 8(b) of the Act, 29 U.S.C. 657(b), to issue a subpena compelling production of the records.[[3]] Instead, it issued the present citation. The citation is not accompanied by a proposed penalty. It however, state that abatement is required "immediately." See section 9(a) of the Act, 29 U.S.C. 658(a)(citations must specify abatement date). If the Commission were to affirm the citation, Kings Island would then be required to abate the violation by providing its records to OSHA under section 1904.7. A failure to abate the violation would subject Kings Island to penalties of up to $1,000 a day.[[4]]

Affirmance of the citation would therefore result in what is commonly termed a "constrictive search"--a search compelled by the threat of a penalty for failure to permit the search. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 202-208, 66 S.Ct. 494, 502-505 (1946). Kings Island claims that affirming the citation would therefore violate its rights under the Fourth Amendment to the Construction. That amendment guarantees "[t]he right of the people to be secure in their... houses, papers and effects, against unreasonable searches and seizures," requires that search warrants be supported by probable cause, and further requires that search warrants "particularly describ[e] the place to be searched, and the . . . things to be seized."

Commission Administrative Law Judge Edwin G. Salyers denied Kings Island's motion for summary judgment and granted the Secretary's. Judge Salyers agreed with the Secretary that, under "the required records doctrine," the OSHA form 200's were not entitled to protection under the Fourth Amendment:

The Secretary also advances the persuasive argument that the Fourth Amendment provides protection only when the party claiming the protection has a legitimate expectation of privacy . . . . It is too clear to require discussion that records mandated by law are for public and not private use. Such records do not carry the shield of the Fourth Amendment . . . .

Kings Island challenges this reasoning on review. It claims that it does not fall within that category of businesses that are "so pervasively regulated that they forfeit" their expectation of privacy. It further argues that:

Merely because the OSHA form 200 is required to be kept by the Act and regulations thereunder, a business should not be expected to give up its right of privacy as to the information contained in the log. It is the information that is subject to the right of privacy; merely because the Act or regulations thereunder require such information to be put into a specified format, the private nature of the information is not affected.

Kings Island contends that Judge Salyer's reasoning conflicts with the Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816 (1978). See, e.g., 436 U.S. at 325, 98 S.Ct. at 1827 (section 8(a) of the Act "is unconstitutional insofar as it purports to authorize inspections without warrant or its equivalent").

II.

The first question we must ask is whether the Fourth Amendment affords protection to the papers here--logs and summaries of occupational injuries and illnesses. In Oliver v. United States, 104 S.Ct. 1735, 1740 (1984), the Court stated:

Since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967), the touchstone of [Fourth] Amendment analysis has been the question whether a person has a "con-stitutionally protected reasonable expectation of privacy." . . . .The Amendment does not protect the merely subjective expectation of privacy, but only "those expectations that society is prepared to as 'reasonable'."

Other Supreme Court decisions make clear that the Katz test applies in deter mining whether a claimant has a protected Fourth Amendment interest in business records seized or sought by government agents. Therefore, "[w]e must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate 'expectation of privacy' concerning their contents." United States v. Miller, 425 U.S. 435, 442, 96 S.Ct. 1619, 1623 (1976).

A.

There is no dispute that the requested logs were "required records," that is, records required by state or regulation to be maintained by the employer and produced for government inspection. See Boyd v. United States, 6 S.Ct. 524. 528 (1886)("books required by law to be kept for their inspection"). The parties strongly disagree, however, as to whether these required records are entitled to any protection under the Fourth Amendment. The Secretary argues that Kings Island has no fourth Amendment rights of any kind in the records at issue because there can be no reasonable expectation of privacy in required records. We find, however, that federal case law does not support such a sweeping proposition. We also conclude that the proposition is unsound, that one may indeed have a reasonable expectation of privacy in required records.

The First Circuit has pointed out, in a specific reference to OSHA form 200's, that "an employer would have less of a privacy interest in a document it is required by statute or regulation to maintain than in a document it produces and maintains on its own." Donovan v. Wollaston Alloys, Inc., 695 F.2d 1, 8 (1st Cir. 1982). It does not follow, however, and the court did not suggest, that an employer has no privacy interest in such required records. "Privacy is not a discrete commodity, possessed absolutely or not at all." Smith v. Maryland, 442 U.S. 735, 749, 99 S.Ct. 2577, 2585 (1979)(dissenting opinion). An employer may have a lesser expectation of privacy in his factory, store or office than a homeowner has in his living room, but Barlow's teaches us that this lesser expectation was among the interests that led to enactment of the Fourth Amendment. 436 U.S. at 311-12, 98 S.Ct. at 1819-20. Similarly, that an employer has a lesser privacy expectation in required records than in his ordinary papers does not necessarily mean that he has no reasonable expectation of privacy in the required records.

We find that federal court case law is consistent with the proposition that employers can have some reasonable expectation of privacy in the contents of records, they are required to keep. In United States v. Blue Diamond Coal Co., 667 F.2d 510 (6th Cir. 1981), cert. denied, 456 U.S. 1007, 102 S.Ct. 2298 (1982), two members of the three-judge panes expressly rejected the Secretary of Labor's argument that the records at issue there were entitled to no protection under the Fourth Amendment because they were required records. In his lead opinion, Judge Engel stated that "[w]e cannot agree that these records are of interest or importance only to the government. It is not uncommon for records required by statute to serve multiple purposes." 667 F.2d at 518. See also 667 F.2d at 522 (Keith, J., dissenting)(joining Judge Engel on this point).

Similarly, in C.A.B. v. United Airlines, Inc., 542 F.2d 394 (7th Cir. 1976), where the airline had statutory obligation to maintain the records in question and to make them available for examination by the Civil Aeronautics Board, the court rejected the agency's position that it was entitled to access to the records without obtaining compulsory legal process, stating that "while the expectation of privacy of a regulated carrier is limited, it nevertheless exists." 542 F.2d at 399. In essence, the court held that, regardless of its statutory authority, the C.A.B. was required under the Fourth Amendment to obtain some form of compulsory legal process so that there would be independent judicial review of the reasonableness of the agency's decision to inspect the records. Cf. United States v. Stanack Sales Co., 387 F.2d 849 (3d Cir. 1968) (notwithstanding statutory authority, FDA inspector denied access to required records without a warrant or an administrative subpena); Mid-Fla. Coin Exchange, Inc. v. Griffin, 529 F. Supp. 1006 (M.D. Fla. 1981)(state statute gave law enforcement officials access upon request to required records of dealers in second-hand precious metals; statutory provisions invalidated or Fourth Amendment grounds). These cases indicate that Fourth Amendment protection may well extend to required records if employers have a reasonable expectation of privacy in them. Directly or indirectly, these decisions reject the view that the classification of business records as "required records" automatically means that they are entitled to no protection under the Fourth Amendment.

B.

We next turn to whether employers have a reasonable expectation of privacy in the records here--occupational injury and illness records. To begin this inquiry, we will ask, as the Sixth Circuit implicitly did in Blue Diamond, whether an employer could reasonably have expected privacy in the contents of injury records if these regulations did not exist. We find that injury records, like the mine ventilation records at issue in Blue Diamond, are not of interest only to the government. Such records might well be compiled for an employer's own business reasons. Employers seeking to preserve the lives and health of valued employees, to raise the morale of a workforce, or to secure lower insurance rates, might consider such records to be the most reliable means of learning what processes, practices, or machinery have been the cause of workplace injuries and illnesses. They might find that injury records reveal patterns and afford broad perspectives in determining, for example, what machinery needs improvement or what work processes require modification.

It is for these reasons that many employers already compiled injury records before the passage of the Act and the adoption of these regulations.[[5]] For example, a well-known private body in the safety and health field, the American National Standards Institute (ANSI), had issued over the course of several years various versions of ANSI Z16.1-1967, American National Standard Method of Recording and Measuring Work Injury Experience. This 28-page- long, detailed standard was jointly sponsored by the National Safety Council and the American Insurance Association, and authorized by representatives of 47 organizations. Over half of these authors were selected from organizations representing business and industry, such as the Aerospace Industries Association of America, the American Iron and Steel Institute, the American Petroleum Institute, the Forging Industry Association, and the Electronic Industries Association. The purpose of the ANSI standard is accident prevention; it states that injury rates compiled in accordance with its criteria may be used to evaluate the need for accident prevention in work places, the seriousness of an accident problem, the effectiveness of safety efforts in similar businesses, and the employer's progress in accident prevention. ANSI Z16.1-1967, Introduction, p.7. Similarly, the National Safety Council's Accident Prevention Manual for Industrial Operations (6th ed. 1969), a broad reference work covering subjects from industrial toxicology to elevators,devotes two full chapters to accident records and investigations. These chapters prescribe various record forms and procedures that companies should use, explain how such records would aid in accident prevention, and state methods for computing the costs of accidents so that "[f]acts about the costs of accidents may be used effectively in securing the active cooperation of foremen . . . [in achieving] safe operating procedures." id., at 281. -See also A. Ihygerson, Safety: Principles, Instruction, and Readings 10 (1972) ("[i]ndustry, business and government often tabulate information concerning the frequency of accidents.....").See generally W. Tarrants,The Measurement of Safety Performance (1980) [[6/]]

Injury records accordingly predate the OSH Act and its record keeping regulations. Such records contain much information that, before the passage of the Act and these regulations, employers could reasonably have expected would remain private. Certainly before the adoption of OSHA's regulations, the federal government. could not have seized these records without some sort of legal process. See Barlow's, 436 U.S. at 324 n.22, 98 S.Ct. at 1826 n.22. 7/ Injury records maintained in accordance with OSHA regulations contain important details about an employer's operations and manufacturing processes that even conscientious executives might not freely reveal to outsiders. The form OSHA No. 200, for example requires that the employer compile the name, job title or description of duties of the injured employee, his department, a brief description of each injury or illness and the affected part of the body, and the type, extent and outcome of the employees injury or illness. The companion form, OSHA No. 101, is even more detailed. Each page is devoted to a single accident or illness. It requires the employer to answer such questions as the following:

12. What was the employee doing when injured? (Be specific. If he was using tools or equipment or handling material, name them and tell what he was doing with them.)

13. How did the accident occur? (Describe fully the events which resulted in the injury or occupational illness. Tell what happened and how it happened. Name any objects or substances involved and tell how they were involved. Give full details on all factors which led or contributed to the accident. Use separate sheet for additional space.)

14. Describe the injury or illness in detail and indicate the part of body affected. . . .

15 Name, the object or substance which directly injured the employee. (For example, the machine or thing he struck against or which struck him; the vapor or poison he inhaled or swallowed; the chemical or radiation which irritated his skin; or in cases of strains, hernias, etc. the thing he was lifting, pulling, etc.)

We therefore conclude that the information recorded on injury records is not of interest only to OSHA, but to both OSHA employers. The records serve multiple purposes, and employers have some reasonable expectation of privacy in the information recorded on them.

C.

The cases cited by the Secretary in support of his asserted "required records doctrine" do not persuade us otherwise. At the outset, we not that only one of the cases cited by the Secretary arose in a procedural context that makes it analogous to the case before us. is Peabody Coal Co., 3 BNA MSHC 1234,1983-84 CCH OSHD (P) 26,788 (FMSHRC 1984), an enforcement action under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801-960 (hereafter "Mine Safety Act"). There, as here, the Secretary of Labor sought access to required records without obtaining an inspection warrant or other compulsory legal process, the Secretary cited the mine operator for its refusal to allow access to the records, and the mine operator defended on the ground that a warrant was required. In Peabody Coal, the Federal Mine Safety and Health Review Commission (FMSHRC) adopted the Secretary's"required records" argument, concluding "that a search warrant was [therefore] not required."3 BNA MSHC at 1235-36, 1983-84 CCH OSHD at p. 34,261.

We conclude, however,t h a t the Secretary' s reliance on PeabodyCoaI i s misplaced. Peabody Coal concerned a pervasively-regulated industry. In fact, nearly all of the Secretary's arguments in this case are based on cases involving pervasively- regulated industries. Yet, the Supreme Court has clearly indicated that cases under this separate and distinct branch of the Fourth Amendment case law have little relevance to OSHA Act inspection issues. See Barlow's, 436 U.S. at 313-14, 98 S.Ct. at 1820-22. Indeed, in Donovan v. Dewey,452 U.S. 594, 599-605, 101 S.Ct. 2534, 2538-410 (1981), the Court sharply distinguished between the privacy expectations of mine operators under the mine Safety Act and those of employers under the OSH Act. Peabody Coal therefore does not speak to the issue before us. [[8/]]

The Secretary cites eight cases in his review brief relating to "the required records doctrine." Some of them contain language that supports his position. For example, in Donovan v. Mehlenbacher, 652 F.2d 228, 231 (2d Cir. 1981), the Second Circuit stated that, because "records required to be kept pursuant to valid regulatory programs have a 'public aspect' for purposes of constitutional analysis," they are not private papers entitled to the protection of the fourth or fifth amendments." The "valid regulatory program" in Mehlenbacher, however, required the Secretary to issue a subpena duces tecum to obtain access to required records maintained under the Fair Labor Standards Act (FLSA); in the case of a refusal to comply, the Secretary had to bring an action in a United States district court to enforce the subpena. 652 F.2d at 229; 29 U.S.C. 209 and 15 U.S.C. 49-50. Accordingly, the district court judge in Mehlenbacher had heard the employer's objections to the subpena and had modified it by restricting the Secretary's inspection of required records. 652 F.2d at 230.

We think it important that, by reviewing the subpena, the district court in Mehlenbacher afforded the employer an independent judicial review of the Secretary's decision to inspect its required records. A subpena procedure is a form of judicial process that can, in certain situations, meet Fourth Amendment requirements. See, e.g., Donovan Lone Steer, Inc., 464 U.S. 408, 104 S.Ct. 769 (1984)(also an FLSA case). In sum, Mehlenbacher does not stand for the proposition that required records can be obtained without Fourth Amendment protection the employer there received Fourth Amendment protection. Cooper's Express, Inc. v. I.C.C. , 330 F.2d 338 (1st Cir. 1964), also contains language that Supports the Secretary's Position. See 330 F.2d at 340 (required records "assume the characteristics of quasi-public documents and their disclosure may be compelled without violating the Fourth Amendment"). However, the persuasive value of Cooper's-Express is diminished by the same factors that led us to discount Peabody Coal and Mehlenbacher. Cooper's Express arose in the context of a pervasively-regulated industry (interstate motor carriers), which clearly influenced the court's reasoning. See 330 F.2d at 341. In addition, the I.C.C. sought access to the required records through an injunction--a form of compulsory legal process that met the requirements of the Fourth Amendment. [[9/]]

The other cases relied upon by the Secretary provide even less support for his position. The only OSH Act case cited by the Secretary is Wollaston Alloys, to which we referred above in Part IIA. As we indicated, however, the statement relied upon by the Secretary, and quoted by us, suggests only that employers have a reduced or diminished expectation of privacy in required records, rather than no privacy interest at all. Moreover. the logs at issue in Wollaston Alloys were in fact obtained under an inspection warrant. We therefore find nothing in Wollaston Alloys to support the view that the Fourth Amendment is inapplicable to OSHA form 200 logs or that these logs may be obtained under the Fourth Amendment without a warrant or its constitutional equivalent.[[10]]

Finally, the Secretary cites to United States v. Consolidation Coal Co., 560 F.2d 214 (6th Cir. 1977)/ vacated and remanded, 436 U.S. 942 (1978), judgement reinstated, 579 F. 2d 1011 (6th Cir. 1978) cert. denied. 439 U.S. 1069 (1979).  However, this case actually supports Kings Island's position and not the
Secretary's In Consolidation Coal the Secretary obtained required records from a mine operator under inspection warrants. The central issue in the case was whether the criminal standard or the administrative standard of probable cause should be applied in obtaining such warrants. The Court held that the Administrative standard applied.

As quoted by the Secretary in this case, the court stated in Consolidation Coal that mine operators "have virtually no expectation of privacy in records and paraphernalia which they exclusively maintain in compliance with the Act." 560 F.2d at 20-21. Nevertheless, despite its view that the records at issue were maintained "exclusively" for compliance purposes and that the industry was one that was pervasively regulated, the court neither stated nor implied that the required records were entirely unprotected under the Fourth Amendment.[[11]] On the contrary, the court rejected "out of hand," 560 F.2d at 217, the Secretary's contention that his searches were constitutionally permissible without the warrants. The sole effect of the diminished expectation of privacy referred to by the court was to reduce the Secretary's burden in establishing probable cause to support a warrant. In sum, when it is properly read, Consolidation Coal stands for the proposition that the Fourth Amendment applies even where the employer has a diminished expectation of privacy in required records.

Accordingly, we reject the Secretary's claim that Kings Island has no reasonable expectation of privacy in its logs and summaries of occupational injuries and illnesses. While the Secretary's position finds some support in the case law, the better view is that the classification of records as "required records" does not mean that they are wholly unprotected under the Fourth Amendment; instead, it affects only the king of protection the Fourth Amendment guarantees. In determining that King Island has a reasonable expectation of privacy in these specific records, we are particularly influenced by the facts that this is an enforcement action under a statute of broad, general applicability; that the employer is not part of a "pervasively-regulated industry"; and that the record sought are not "of interest or importance only to the government." Blue Diamond 667 F.2d at 518. We conclude that the records at issue are entitled to the protection of the Fourth Amendment. We now turn to the question of what protection the Fourth Amendment affords.

III.

Our conclusion that the records at issue are entitled to protection under the Fourth Amendment does not necessarily mean that OSHA must obtain a search warrant to gain access to them. The Protection afforded by the Fourth Amendment varied depending on a number of circumstances, including the extent of the employer's privacy interest in the records, the degree of the government's intrusion on those privacy, the importance of the governmental interest at stake, and the amount of discretion vested in the law enforcement official in the field. "The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ' reasonableness' upon the exercise of discretion by government officials, including law enforcement agents, in order 'to safeguard the privacy and security of individuals against arbitrary invasion....' " Delaware v. Prouse, 440 U.S. 675, 653-654, 99 S.Ct. 1391, 1396 (1979). Cf. Camara v. Municipal Court, 387 U.S. 523, 532-533, 87 S.Ct. 1727, 1732-1733 (1967)(primary purpose of warrant is to circumscribe "the discretion of the official in the field"; warrant requirement imposed where "broad statutory safeguards are no substitute for individualized review."); See v. City of Seattle, 887 U.S. 541, 544-45, 87 S.Ct. 1737, 1740 (1967)(subpena may not be enforced by the inspector in the field; subpenaed party may obtain judicial review of subpena's reasonableness before suffering penalties for refusing to comply). However, the Fourth Amendment does not always require a warrant to achieve its goal of preventing arbitrary intrusions by government agents. The amendment is applied flexibly in devising different mechanisms to achieve its objectives depending upon the circumstances. Prouse, 440 U.S. at 654-55, 99 S.Ct. at 1396-97.[[12]]

For administrative inspections of business premises and business records, there are at least three ways an employer's Fourth Amendment rights could be protected. At times, an inspection warrant, issued upon a showing of "administrative probable cause," is required. E.g., Barlow's, 436 U.S. at 320-21, 98 S.Ct. at 1824-25; See, 387 U.S. at 545, 87 S.Ct. at 1740. In other circumstances, different forms of compulsory legal process meeting less stringent Fourth Amendment tests are adequate. E.g., Lone Steer (administrative subpenas); Midwest Growers Cooperative Corp. v. Kirkemo, 533 F.2d 455, 461 (federal court injunction).[[13]] In still other situations, no form of compulsory legal process is deemed necessary because "privacy interest [is] adequately protected by [a] regulatory Eschemel authorizing warrantless

Here, the Secretary argues that the present regulatory scheme falls within a recognized exception to the warrant requirement that permits the government to compel disclosure of business records through "compulsory reporting requirements, whose breach may result in the composition of civil or criminal penalties." The Secretary quotes the following statement from California v. _Byers, 402 U.S. 424, 427-28, 91 S. Ct.1535, 1537-38 (1971):

An organized society imposes many burden on its constituents. It commands the filing of tax returns for income; it requires producers and distributors of consumer goods to file informational reports on the manufacturing process and the content of products, on the wages, hours, and working condition of - employees. Those who borrow money on the public market or issue securities for sales to the public must file various information reports; industries must report periodically the volume and content of pollutants discharged into our waters and atmosphere. Comparable examples are legion.

Although Byers is a Fifth Amendment case rather then a Fourth Amendment case, the Secretary's basic claim is accurate. Statutory and regulatory reporting requirements like those described above have generally been upheld against fourth Amendment challenges. E.g., California Bankers Association v. Schultz, 416 U.S. 21, 57-62, 94 S.Ct. 1494, 1515-20 (1974).

The problem with the Secretary's argument is that 29 C.F.R. 1904.7(a) is not a reporting requirement. The Secretary cites no case, and we have found none that treats a similar regulatory scheme (involving access to business records upon request of field compliance personnel) as a reporting requirement within the meaning of California Bankers and Byers. The Secretary's brief shows an understanding of this point, but he nevertheless argues that:

[Section 1904.7] differs from the more usually encountered reporting requirement only in that it does not require the employer to submit the required documents at certain specified intervals--such as monthly, quarterly or annually--but instead requires that the employer make the records available "upon request." For many employers such request by the agency will be made infrequently, if ever. To that extent the reporting obligation in 1904.7 is far less onerous than the usual statutory or regulatory reporting requirement.

In essence, the Secretary is conceding that section 1904.7 is different from the reporting requirements described in Byers because it involves the exercise of discretion by field officers in deciding which employers must make their injury records available for inspection and copying and when they must do so. The Secretary asserts that this distinction is inconsequential. We conclude that the distinction is critical. It is this very characteristic--the element of selective enforcement, involving the exercise of discretion by zealous enforcement officers in the field--that strikes at the core of Fourth Amendment values. It permits administrative officers to decide--without independent adjudicative review--whose privacy shall be intruded upon, when, and to what extent.

In Mid-Fla. Coin Exchange, provisions of a Florida statute similar to the regulations here were found to conflict with the Fourth Amendment. The statute required employers in the second-hand precious metal business, which is not pervasively-regulated, to keep records of certain transactions and to make those records available for inspection by law enforcement officers upon request. The court noted that those statutory provisions "combine aspects of" administrative search warrants and subpenas duces tecum "without incorporating the protections afforded by either." 529 F. Supp. at 1019. This was a critical defect in the statutory scheme, for employers were given no opportunity for judicial review before being compelled to produce their records, as they would have been under either a warrant or a subpena procedure. 529 F. Supp. at 1024-27. Accordingly, the statutory scheme imposed no restraint on the decisions of officers in the field to inspect the records of particular employers. This failure to provide a "safeguard against arbitrary governmental intrusions" rendered the scheme unconstitutional. 529 F. Supp. at 1026-27. The reasoning of Mid-Fla. Coin Exchange is equally applicable to section 1904.7. See also Illinois v. Krull, 107 111. 2d 107, 481 N.E. 2d 703 (1985), rev'd on other grounds, 55 U.S.L.W. 4291 (U.S. March 10, 1987).

There are, however, certain narrow circumstances in which a warrantless regulatory scheme may adequately protect against the arbitrary governmental intrusions condemned by Mid-Fla. Coin Exchange. For example, the Court concluded in Dewey that the "inspection program [under the Mine Safety Act], in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant." 452 U.S. at 603, 101 S.Ct. at 2540. It noted that the statute requires inspection of all mines and specifically defines the frequency of such inspections. 452 U.S. at 603-604, 101 S.Ct. of 540-41, citing 30 U.S.C. 813. Thus, the Court reasoned, "the federal regulatory presence [under the Mine Safety Act] is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." 452 U.S. at 600, 101 S.Ct. at 2539
Dewey sharply distinguished, however, between the enforcement scheme under the Mine Safety Act and the warrantless inspection scheme under the OSH Act, which Barlow's had invalidated. In making this distinction, Dewey suggested that warrantless inspections are not permissible under the OSH Act because OSHA compliance officers have "almost unbridled discretion [under the Act] . . . as to when to search and whom to search" and the employer has "little real expectation that his business will be subject to inspection." 452 U.S. at 601, 101 S.Ct. at 2539.

Applying Dewey to the warrantless inspection scheme that is before us now leads us to conclude that it is not "a constitutionally adequate substitute for a warrant." 'We find no greater restriction under section 1904.7 on the "almost unbridled discretion" of OSHA compliance officers to determine "when to search and whom to search" than the Supreme Court found in the OSH Act itself. Moreover, the Secretary in effect concedes that this is a situation where, in the words of the Dewey court, there is "little real expectation that a particular employer's business will be subject to inspection." As stated by the Secretary in his review brief, "[f]or many employers such request by the agency [for access to required records] will be made infrequently, if ever

We therefore hold that the cited regulation, 29 C.F.R. 1904.7(a), is invalid as applied to this case. [[14/]] Paraphrasing the holding of Barlow's, 436 U.S. at 375, 98 S.Ct. at 1827, we hold that section 1904.7(a) violates the Fourth Amendment to the extent that it purports to authorize an inspection required records without a warrant or its "equivalent," e.g., the employer's consent or an administrative subpena under section 8(b) of the Act.[[15]] Here, OSHA neither obtained an inspection warrant nor issued a section 8(b) administrative subpena compelling Kings Island to produce its injury records. In the absence of this compulsory legal process, the citation alleging a violation of section 1904.7(a) must be vacated.

Accordingly, we vacate citation 1 unless the Secretary requests an opportunity to introduce evidence contrary to officially-noticed documents within 15 days of this decision.

FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary


DATED: MAR 18 1987


SECRETARY OF LABOR,
Complainant,

v.

KINGS ISLAND, DIVISION OF TAFT
BROADCASTING COMPANY,
Respondent.

OSHRC Docket No. 82-1016

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

As a result of an employee complaint, a compliance officer from the 0ccupational Safety and Health Administration attempted to make an inspection of respondent's facility in Kings Mills, Ohio, on September 1, 1982, under the provisions of 29 'U.S.C. 651, et seq. The nature of the complaint received to the use of "fog" in certain scenes of the celebration performance at the American Heritage Theater, which "fog" allegedly irritated employees' eyes and upper respiratory system. Upon arrival at the facility, the compliance officer requested he be allowed to review respondent's log and summary of reportable occupational injuries and illnesses (OSHA Form No. 200). This request was denied by respondent's Director of Loss Prevention and respondent's attorney. All factual matters have been resolved by means of discovery, and the matter is now before the undersigned Administrative Law Judge upon cross motions for summary judgment. The sole issue in this ease is whether respondent violated the provisions of 29 C.F.R. 1904.7 by its failure to produce for inspection without warrant its injuries and illnesses records upon request by an authorized representative of the Secretary of Labor.

The cited standard provides in part as follows:

(a) Each employer shall provide, upon request, records provided 11
for in 1904.2,1/- 1904.4, and 1904.5,. for inspection and copying by any representative of the Secretary- of Labor for the purpose of carrying out the provisions of the act . . . .

These regulations were promulgated pursuant to section 8(c)(1) of the Act which provides in pertinent part:

Each employer shall make, keep and preserve, and make available to the Secretary ... such records regarding his activities relating to this Act as the Secretary . . . may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses. [29 U.S.C. 657(e)(1)]

Respondent relies primarily on the Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U. S. 307, which prohibits warrantless inspections of an employer's facilities under section 8(a) of the Act when an employer objects to such inspection [[2/]]. The Secretary counters with the "required record" argument that this decision should not apply to an inspection conducted under section 8(c)(I) of the Act whereby the Secretary seeks only to inspect records which are required by statute to be kept and made available to the Secretary upon request. Both parties make convincing arguments in support of their respective positions.

The strongest support for respondent's position is found in footnote 22 of Barlow's,supra, which is fully quoted below:

Delineating the scope of a search with some care is particularly important where documents are involved. Section 8(c) of the Act, 29 U.S.C. 657(c), provides that an employer must "make, keep and preserve, and make available to the Secretary [of Labor] or to the Secretary Of Health, Education and Welfare" such records regarding his activities relating to OSHA as the Secretary of Labor may prescribe by regulation as necessary or appropriate for enforcement of the statute or for developing information regarding the causes and prevention of occupational accidents and illnesses. Regulations requiring employers to maintain records of and to make periodic reports on "work-related deaths, injuries and illnesses" are also contemplated, as are rules requiring accurate records of employee exposures to potential toxic materials and harmful physical agents.

In describing the scope of the warrantless inspection authorized by the statute, 8(a) does not expressly include any records among those items or things that may be examined, and 8(c) merely provides that the employer is to "make available" his pertinent records and to make periodic reports.

The Secretary's regulation, 29 CFR 1903.3 (1977), however, expressly includes among the Inspector's powers the authority "to review record, required by the Act and regulations published in this chapter, and other records which tire directly related to the purpose of the inspection." Further, 1903.7 requires inspectors to indicate generally "the records specified it, 1901.3 which they wish to review" but "such designations or records shall not proclude access to additional records specified in 1903.3." It is the Secretary's position, which we reject, that an inspection of documents of this scope may be effected without a warrant.

The order that issued in this case included among the objects and things to be inspected "all other things therein (including but not limited to records, files, papers, processes, controls and facilities) bearing upon whether Barlow's, Inc., is furnishing to its employees employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees, and whether Barlow's, Inc. is complying with . . . the OSHA regulations.

Respondent argues a proper reading of this footnote compels a conclusion that the Secretary's effort to obtain any employer records without a warrant and over the objection of the employer violates the constitutional right against illegal searches and protected by the Fourth Amendment.

The Secretary urges that a distinction must be made between records required to be kept by law and all other records. He relies upon the well established "required records" doctrine and cites numerous cases in support.[[3/]]

A careful study of the Barlow's decision, supra, and footnote 22 compels the conclusion that the Court neither expressed nor implied an intent to overturn the firmly established "required record" doctrine. The footnote points out that section 8(a) of the Act does not specifically deal with records and notes that this power emanates from the Secretary's regulations contained at 29 C.F.R. 1903.3 which provides the right "to review records required by the Act . . . and other records which are directly related to the purpose of the inspection" (Emphasis supplied). The Court does not strike down the Secretary's right to inspect "required records" but merely rejects the Secretary's position that he is entitled to non-required record as well, noting "an inspection of documents of this scope" may not be effected without a warrant.

The Secretary appropriately points out that he proceeds under section 8(c)(1) of the Act and his regulation contained at 29 C.F.R. 1904.7. These provisions of the Act and regulations, as set out above, specify the records required to be maintained and that these records shall be made available upon request by the Secretary. Unlike the Language contained in 29 C.F.R. 1903.4, the language of 29 (C.F.R. 1904.7 does not require the production of any other records except those required by law. This factor is sufficient to distinguish the facts of the instant case from the holding in Barlow's.

The Secretary also advances the persuasive argument that the Fourth Amendment provides protection only when the party claiming the protection has a legitimate expectation of privacy. Katz v. U. S., 389 U.S. 347 (1967). It is too clear to require discussion that records mandated by law are for public and not private use. Such records do not carry the shield of the Fourth Amendment. Wilson v. U. S., 221 U.S. 361 (1911); Rodgers v. U.S., 138 F.2d 992 (6th Cir. 1943).

Respondent also urges the Secretary, at best, is entitled only to those records directly related to and within the scope of the employee's complaint, citing Donovan v. Blue Ridge Pressure Castings Inc., 543 F. Supp. 53 (M.D. Pa. 1981). In Blue Ridge, the Court did limit the Secretary's inspection of company records to those areas delineated in the employee complaint. but the Court went on to state:

. . .[H]owever, if Blue Ridge cannot effectively segregate the pertinent records of these employees from its company files, then, it must allow OSHA to examine all of the employee records referred to in the warrant. [543 F. Supp. 61]

Since respondent has admitted it did not segregate OSHA Forms 200 (Secretary's Second Request for Admissions, Request No.1; and Respondent's Response), Blue Ridge, supra, offers no support for its disposition.

Accordingly, respondent's failure to produce the required records constitutes a violation of 29 C.F.R. 1904.7.

After due consideration of the briefs and arguments in this matter, it is hereby ORDERED:

The Secretary's motion for summary judgment be, and it hereby is, granted and respondent's motion for summary judgment be, and hereby is, denied


EDWIN G. SALYERS
Judge

Date: July 6, 1983


SECRETARY OF LABOR
Complainant,

v.

KINGS ISLAND, DIVISION OF
TAFT BROADCASTING COMPANY
Respondent

OSHRC Docket No. 82-1016


ORDER

No response having been received from the Secretary, in accordance with the Commission decision issued March 18, 1987, this case is a final order as of the date of this order.

FOR THE COMMISSION
Ray H Darling, Jr.
Executive Secretary

Dated: APR 6 1987

 

FOOTNOTES:

[[1]] Section 1904.7 states:

1904.7 Access to records.

(a) Each employer shall provide, upon request, records provided for in 1904.2, 1904.4 and 1904.5, for inspection and copying by any representative of the Secretary of Labor for the purpose of carrying out the provisions of the act ....

[b](3) Access to the log provided under this section shall pertain to all logs retained under the requirements of 1904.6.

[[2]] Section 1904.2 and 1904.6 state in part:

1904.2 Log and summary of occupational injuries and illnesses.

(a) Each employer shall... (1) maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment; and (2) enter each recordable injury or illness on the log summary as early as practicable but no later than 6 working days after receiving information that a recordable injury or illness has occurred.  For this purpose from OSHA No. 200 or an equivalents... shall be used.   The log and summary shall be completed in the detail provided in the form and instructions on form OSHA No. 200.
****
1904.6 Retention of records.

Records provided for in  1904.2, 1904.4 and 1904.5... shall be retained in each establishment for 5 years following the end of the year to which they relate.

[[3]] Section 8(b) of the Act states that:

In making his inspections and investigations under this Act[,] the Secretary may require the attendance and testimony of witnesses and the production of evidence under oath.  Witnesses shall be paid the same fees and mileage that are paid witnesses in the courts of the United States.  In case of contumacy, failure, or refusal of any person to obey such an order, any district court of the United States courts of any territory or possession, within the jurisdiction to issue to such person an order requiring such person appear to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question, and any failure to obey such order of the court may be punished by said court as a contempt thereof.

[[4]] See section 10(b) of the Act, 29 U.S.C. 659(b), and section 17(d), 29 U.S.C. 666 (d); see also section 11(b), 29 U.S.C. 660(b) (judicial remedies, including contempt, for failure to abate).

[[5]] Recognition of this fact is implicit in the Secretary's assertion that these records are required records."  The required records doctrine developed by the Supreme Court involves the application of a three-pronged test for determining whether particular records are properly characterized as "required records."  The Second prong of this test is that "information is to be obtained by requiring the presentation of records of kind which the regulated party has customarily kept." Grosso v. United States, 390 U.S. 62, 67-68, 88 S. Ct. 709, 713 (1968). See also Bionic Auto Parts & Sales, Inc. v. Fahner, 721 F.2d 1072, 1083 (7th Cir. 1983) (records could not be considered "required records" because "[a]utomotive parts dealers... probably would  not record whether a serial number had been defaced in the absence of state regulation.  Recording that information would not facilitate their normal business activity.").  Thus, to even qualify as a "required record," the papers required to be kept must be of the sort that businesses customarily keep for their own purposes.  While this does not necessarily mean that an employer always has a reasonable expectation of privacy in required records, it does suggest the infirmity of the Secretary's view that an employer never does.

We also note that under section 1904.2(a) the employer has the option of maintaining its record of injuries and illnesses on either form OSHA No. 200 or "an equivalent [form]."  This suggests that many employers maintained such records in a similar format before the Secretary developed his form OSHA No. 200 and imposed a requirement for such recordkeeping.

[[6]] We take official notice of these publication under section 7(d) of the Administrative Procedure Act, 5 U.S.C.  555(e). That provision states in part that "[w]hen an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary."  We will afford the Secretary this opportunity.

[[7]] In footnote 22 of its decision in Barlow's, the Court stated that an inspection of records of the scope sought in that case could not be effected without a warrant or its equivalent is necessary to obtain access to required records, but clearly indicates that a warrant is necessary for access to any other business records.

[[8]] We also note that Peabody Coal relied heavily on the concurring opinion in Blue Diamond.  As we have observed previously, two of the three judges in Blue Diamond expressly rejected the Secretary's argument in that case that coal mine operators could have no reasonable expectation of privacy in required records.  On this issue, therefore, the concurring opinion cited by the FMSHRC presented a minority viewpoint.

[[9]] Specifically, the I.C.C. brought an action to obtain a federal court injunction.   The importance of this procedure is not readily apparent on the face of the Copper's Express does make this clear.  Midwest Growers Cooperative Corp. v. Kirkemo, the injunction procedure under the Interstate Commerce Act is analogous to a subpena procedure and equally protective of Fourth Amendment rights.

[[10]] Two other cases relied upon by the Secretary are inapposite.  Roders v. United States, 138 F.2d 992 (6th Cir. 1943, involved the constitutionality of a statutory reporting requirement rather than an agency effort to obtain access to required records maintained by the employer.  For the reasons we discuss below, Rodgers conclude that these two situation are not analogous.  In any event, Rogers preceded Katz by 24 years.  It therefore can shed little light on the proper application of the "reasonable expectation of privacy" test.  Indeed, we do not read Rodgers as suggesting that the employer had no Fourth Amendment interest in the information he was compelled to provide.  United States v. Snyder, 668 F.2d 686 (2d Cir. 1982), is predominantly a "standing" case, that is, the union official claiming the protection of the Fourth Amendment had "no reasonable expectation of privacy" in the record at issue because they were the union's records, not his.  This is clear from the court's reliance on Rakas v. Illinois, not show that the inspection violated his personal fourth amendment rights." 668 F.2d at 690 (emphasis added.)

[[11]]  In reaching its conclusion that mine operators have little expectation of privacy in required records, the court was strongly influenced by the pervasive regulation of the mine industry.  This is clear from viewing the language quoted by the Secretary in context:

Our conclusion is bolstered by the fact that the coal mining industry has a history of close regulation under the aegis of the commerce clause....  Therefore, it reasonable to assume that mine operators have a reduced expectation of privacy in their business offices than less highly scrutinized enterprises..... They have virtually no expectation of privacy in records and paraphernalia which they exclusively maintain in compliance with the Act.

560 F.2d at 220-21 (case citation omitted). We also not that the court referred to records that are maintained "exclusively" for the purpose of complying with a statute.  Such records are distinguishable from the records at issue here, which "serve multiple purposes." Blue Diamond, 667 F.2d at 518.

[[12]] One commentator makes this point by noting that the Fourth Amendment is no longer treated as an "all-or-nothing proposition"; in other words, he suggests, "there is some Fourth Amendment middle ground."  1 LaFave, Search and Seizure 2.1(e), at p. 315 (2d ed. 1987).  Thus, more recent decisions recognize that "it is possible to subject..... [a particular]  law enforcement practice to some restraints so as to ensure that it is not used in a dragnet fashion or in a random or unprincipled fashion, but yet not destroy its effectiveness by imposing all the limitations which are applicable to other, more traditional kinds of searches that are much more threatening to privacy and security." Id.

[[13]] In Prouse, the Court stated that "the [Fourth Amendment] reasonableness standard usually requires, at a minimum, that the fact upon which an intrusion is based be capable of measurement against 'an objective standard,' whether this be probable cause or a less stringent test."  400 U.S. at 654, 99 S.Gt. at 1396.  Under both the administrative subpena procedure and the federal court injunction procedure, the "reasonableness" of the government's demand for access to business records is measured against the "less stringent" Fourth Amendment test first announced in Oaklahoma Press, 327 U.S. at 208, 66 S. Ct. at 505.  Thus, for example, an administrative subpena complies with the Fourth Amendment if the inquiry is one the agency is authorized by law to make, the subpena is not too indefinite or board in its description of the records to be produced, and the materials specified are relevant.   See also Lone Steer, 464 U.S. at 414-15, 104 S.Ct, at 773; See, 387 U.S. at 544, 87 S.Ct. at 1740.  The Barlow's/Camara/See test for determining the existence of "administrative probable cause" is another example of a Fourth Amendment test that is "less stringent" than the traditional test for determining probable cause in a criminal proceeding.

[[14]] In footnote to his review brief, the Secretary states that Kings Island's contention "that 29 C.F.R. 1904.7 is violation of the Four Amendment.... necessarily involves a challenge to the constitutionality of section 8(c) [of the Act]."   Because "the Commission is without authority to pass on the fundamental constitutionality of the statute," he continues, "the Commission's authority to decide the issues presented in this case is questionable."  We reject this argument.  Section 8(c)(1) of the Act, 29 C.F.R. 657(c)(1) states only that the employer shall "make [requirement records] available to the Secretary," without specifying how this is to be done.  The statute is neutral in the question of whether compulsory legal process is necessary in order for the Secretary to obtain access.   It is only  the cited regulation that purports to compel access to required records in the absence of compulsory legal process.  Since the constitutionality of section 8(c) is not at issue, there can be no bar to our resolution of the issues in this case.

[[15]] We have upheld section 1904.7 citations when a warrant or subpena has been obtained for access to the records sought.  See Thermal Reduction Corp., 85 OSAHRC____, 12 BNA OSHC 1264, 1984-85 CCH OSHD 27,248 (No. 81-2135, 1985).  See also the concurring opinion in that case.  12 BNA OSHC at 1270, 1984-85 CCH OSHD at p. 35,201.

[[1/]]  The standard requires an employer to maintain a log and summary of all recordable occupational injuries and illness in each establishment and directs that OSHA Form 200 (or its equivalent) be used for this purpose.

[[2/]]  The reasons given for respondent's refusal to produce records is contained in the Secretary's Request for Admissions, item 7 and Respondent's Response thereto:

(7) On September 1, 1982, Compliance Officer Carroll made a request to Richard C. Fussner and to Robert J. Townsend, that Respondent's OSHA Form 200 be made available to him for inspection and copying for the past three (3) years so that he could review it for "hygienic and environmental problems in general" which had no relationship at all to the employee complaint which was the purpose for his inspection.  Mr. Carroll was informed that Respondent was consenting to an inspection of its premises and records, which was limited to only the scope of the employee complaint.  He was expressly told that any inspection beyond the scope of the complaint would not be authorized by Respondent without the issuance of a search warrant or other legal process.  Mr. Carroll was told that his request to inspect the 200 log for the purposes he stated constituted a "finishing expedition" and that he had not demonstrated any probable cause for such a request.  Mr. Carroll was also informed that the smoke which was the subject of the employee complaint was first used in the American Heritage Theater on April 24, 1982 and that there were no entries on the Form 200 log indicating any illness or injury as a result of the use of the smoke.

[[3/]]  Boyd v. U.S., 116 U.S. 616, 6 S. Ct. 524; Hale V. Henkel, 201 U.S. 43, S. Ct. 370 (1906); Cooper's Express, Inc. v. I.C.C., 330 F.2d 338 (1st Cir. 1964); Bowles v. Glick Bros. Lumber Co., 146 F.2d 566 (9th Cir. 1954); Rodgers v. U.S., 138 F2.d 992 (6th Cir. 1943); Wilson v. U.S., 221 U.S. 361 (1911); Katz v. U.S. 289 U.S. 347 (1967); Shapiro v. U.S., 335 U.S. 1 (1948); U.S.  v. Miller, 425 U.S., 435 (1976); Rakas v. Illinois, 439 U.S., 128 (1978); U.S. v. Snyder, 668 F.2d 686 (2d Cir. 1982); U.S. v. Gordon, 655 F.2d 478 (2d Cir. 1981); U.S. v. Consolidation Coal Co., 560 F.2d 214 (6th Cir. 1977); Erie Bottling Corp. v. Donovan, 539 F. Supp. 600 (W.D. Pa. 1982); and Donovan v. Dewey, 101 S. Ct. 2534 (1981).