WEST POINT PEPPERELL, INC.
OSHRC Docket No. 77-4297
Occupational Safety and Health Review Commission
April 27, 1981
[*1]
Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor
Fred M. Richardson, for the employer
Eric Frumin, Assistant Director, Occupational Health & Safety, Local 1716, Amalgamated Clothing Workers Union, for the employees
Local 1716, Amalgated Clothing & Textile Workers Union, for the employees
OPINIONBY: COTTINE
OPINION:
DECISION
COTTINE, Commissioner:
This case is before the Commission on an interlocutory appeal from the August 18, 1978 order of Administrative Law Judge David G. Oringer. That order granted a motion filed by the Secretary of Labor ("the Secretary") to compel the Respondent, West Point Pepperell, Inc. ("WPP"), to comply with a discovery request (Request for Production No. 7, as modified) made by the Secretary. The judge ordered WPP to produce medical surveillance records of all affected employees in the areas of its plant described in a contested citation, with their names, addresses, and social security numbers deleted. These records were ordered produced for examination by the Secretary and his medical experts.
The issues to be resolved on appeal are whether WPP must comply with the Secretary's [*2] Request for Production No. 7 and, if so, whether the judge's protective order adequately ensures the confidentiality of the medical records. In addition, we must determine whether the Sectetary's motion to compel compliance with Request for Production No. 9, which seeks specified profit and loss statements for WPP's Lindale, Georgia, plant, has become moot and, if not, whether the motion should be granted.
I
WPP engages in textile manufacture at its Lindale mill, which was inspected by an OSHA compliance officer on July 15 and July 18-22, 1977. As a result of that inspection, a citation n1 was issued alleging serious violations of the respiratory protection standard at 29 C.F.R. § 1910.134(a)(1) n2 and the cotton dust standard at 29 C.F.R. § § 1910.1000(a)(2) and (e). n3 On November 22, 1977, a citation and notification of proposed penalty totalling $560 were issued to WPP, which contested both the citation and proposed penalty. Thereafter, a complaint and an answer were filed in this case.
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n1 The citation described the alleged violation as follows:
Item 1a. 29 C.F.R. § 1910.134(a)(1): When effective engineering controls were not feasible or while they were being instituted, appropriate respirators were not used pursuant to the requirements of this section: In areas where excessive raw cotton dust concentrations were measured;
a). No. 3 Carding (Lap & Mixed)
b). No. 4 Carding
c). No. 3 Drawing (East 24 Whitin Frames)
d). No. 3 Roving
Item 1b. 29 C.F.R. § 1910.1000(a)(2): Employees were exposed to raw cotton dust in excess of the 8-hour time weighted average limit listed in Table Z-1 of subpart 2 of 29 C.F.R. § 1910:
a). No. 1 Opening and Picking
b). No. 3 Opening (manual feed only)
c). No. 4 Opening and Picking
d). No. 3 Carding (lap feed and mixed)
e). No. 4 Carding
f). No. 3 Drawing (East)
g). No. 3 Roving
Item 1c. 29 C.F.R. § 1910.1000(e): Feasible administrative or engineering controls were not determined and implemented to reduce employee exposure to raw cotton dust:
a). No. 1 Opening and Picking
b). No. 3 Opening (manual feed only)
c). No. 4 Opening and Picking
d). No. 3 Carding (lap feed and mixed)
e). No. 4 Carding
f). No. 3 Drawing (East)
g). No. 3 Roving
n2 The standard at § 1910.134(a)(1) provides:
1910.134 -- Respiratory protection.
(a) Permissible practice
(1) In the control of those occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors, the primary objective shall be to prevent atmospheric contamination. This shall be accomplished as far as feasible by accepted engineering control measures (for example, enclosure or confinement of the operation, general and local ventilation, and substitution of less toxic materials). When effective engineering controls are not feasible, or while they are being instituted, appropriate respirators shall be used pursuant to the following requirements.
n3 The standards at § 1910.1000(a)(2) and (e) provide:
1910.1000 -- Air contaminants.
(a) Table Z-1:
(2) Other materials -- 8-hour time weighted averages. An employees's exposure to any material in table Z-1, the name of which is not preceded by "C", in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table.
(The figure for raw cotton dust is 1 milligram of particulate per cubic meter of air.)
* * *
(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with § 1910.134.
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On April 5, 1978, the Secretary filed 26 interrogatories and 12 requests for production of documents. Interrogatories 15-21 request the identity of all employees who have worked in the seven areas of the Lindale plant specified in the citation at any time since January 1, 1975. With respect to each of the seven areas, a description of any medical management and surveillance of the respiratory functioning of the named employees that took place during this period is requested along with the identification of all related documents. Requests for Production of Documents numbered 6, 7, and 9 seek production of the following documents for inspection and copying:
(6) Corporate annual reports for the years 1972, 1973, 1974, 1975, 1976 and 1977, such as the reports required by the United States Securities and Exchange Commission.
(7) All studies, reports, tests (e.g., FEV "1" spirometric or otherwise) or any documents which in any way relate to the pulmonary functioning of respondent's Lindale Mill employees.
(9) Profit and Loss Statements for respondent's mill located in Lindale, Georgia, for the years [*4] 1972, 1973, 1974, 1975, 1976 and 1977, and 1978 to date.
On April 19, 1978, WPP filed answers to the Secretary's interrogatories and requests. It objected to Interrogatories 15-21 and Request for Production No. 7 on the grounds that (1) the requested information is irrelevant to the issues in this case, (2) the information is beyond the scope of permissible discovery because it is protected by the physician-patient privilege, and (3) the release of the information would result in an unwarranted intrusion on its employees' constitutionally protected right of privacy. n4
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n4 WPP also objected to the interrogatories and Request for Production No. 7 on the grounds that it would be unduly burdensome and expensive to respond to them. This objection has been abandoned on review and will therefore not be considered.
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Regarding Requests for Production Nos. 6 and 9, WPP objected on the ground that the financial condition of an employer is not a relevant consideration in determining the economic feasibility of engineering or [*5] administrative controls. Moreover, WPP contended that its profit and loss statements constitute a trade secret.
In a motion to compel discovery and a supporting memorandum dated May 10, 1978, the Secretary argued that WPP's objections to Interrogatories 15-21 and Requests for Production Nos. 6, 7, and 9 are without merit and that discovery of the information is permissible under the Federal Rules of Civil Procedure.
On June 7, 1978, Judge Oringer granted the Secretary' motion in its entirety. The order did not set forth reasons for the implied denial of WPP's objections.
On June 15, 1978, WPP filed with the Commission a petition for leave to appeal and for stay of the proceedings. In that petition, WPP sought interlocutory review of the judge's June 7 ruling to the extent that it compelled answers to the Secretary's Interrogatories Nos. 15-21 and Requests for Production Nos. 6, 7, and 9. WPP repeated its original objections. In addition, WPP disputed Judge Oringer's determination, assertedly made during a conference call with the parties on June 1, 1978, that the authorized employee representative could waive the employees' right to protection from unwarranted disclosure of [*6] medical information. n5 In his response, the Secretary argued that WPP lacks standing to assert the constitutional claim of privacy on behalf of its employees.
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n5 The Amalgamated Clothing and Textile Workers Union, AFL-CIO, Local 1716, (hereafter "the Union") elected party status prior to the filing of the discovery requests at issue in this proceeding.
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During a conference call on June 19, 1978, the judge continued the hearing previously set for July 10, and suspended discovery in light of the imminent publication of a new cotton dust standard. n6 After publication of that standard and filing of the parties' statements regarding its effect, the Secretary moved for an order setting the times and conditions for completion of discovery, including provision for sanctions under Fed. R. Civ. P. 37.
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n6 An earlier petition for leave to appeal and for stay had been filed by WPP on June 5, 1978, urging the Commission to reverse Judge Oringer's denial of WPP's motion for an indefinite continuance pending promulgation of a new cotton dust standard. The Secretary opposed WPP's petition and the Commission denied the petition on June 28, 1978.
[*7]
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On July 20, 1978, Judge Oringer responded to the Secretary's motion by issuing a Ruling and Order adhering to his June 7 order. In this order, the judge expressly rejected WPP's contention that the medical surveillance records are protected by the physician-patient privilege. He held that the privilege belongs to the employees and that it had been waived by their representative, the Union. He ordered the parties to fully comply with the order dated June 7 by no later than August 10, 1978. In addition, he stated that he would dismiss WPP's notice of contest and its answer, affirm the citations, assess the proposed penalty and set the proposed abatement dates if WPP failed to comply with that part of his order directed to the Respondent. On August 1, 1978, WPP refused to produce the employee medical records and the profit and loss statements as required by the July 20 Ruling and Order.
On August 2, 1978, Judge Oringer responded to WPP's statement by ordering WPP to turn over the profit and loss statements for its Lindale Mill unless it waived the Secretary's burden of proving economic feasibility. [*8] As to Interrogatories Nos. 15-21, the judge reiterated his conclusion that the physician-patient privilege belonged exclusively to the employees and their representatives and added his conclusions that the information was both relevant and discoverable. Therefore, WPP was again ordered to produce the material for the Secretary or face dismissal of the notice of contest and answer. In addition, Judge Oringer ordered both the Secretary and the Union to maintain the confidentiality of the medical surveillance records and to comply with all applicable legal provisions pertaining to keeping the records confidential. n7
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n7 After setting forth his order to the Secretary and the Union, Judge Oringer cited E.I. du Pont de Nemours & Co. v. Finklea, 442 F. Supp. 821 (S.D. W. Va. 1977). In du Pont, the court ordered enforcement of subpoenas duces tecum served on duPont by the National Institute of Occupational Safety and Health (NIOSH), a division of the Department of Health, Education and Welfare (DHEW) established by § 22 of the Act, 29 U.S.C. § 671. These subpoenas required du Pont to produce medical and personnel records of designated du Pont employees for use by NIOSH in conjunction with a research investigation. In addition to ordering du Pont to comply with the subpoenas, the court also issued orders to the respondents -- the director of NIOSH and the Secretary of HEW -- to insure the confidentiality of the subpoenaed records. Among these orders was an order to comply with all applicable DHEW regulations regarding the confidentiality of medical information in its possession and an order prohibiting disclosure under the Freedom of Information Act, 5 U.S.C. § 552, of any information obtained. The court specifically determined that the records were protected from disclosure under the Freedom of Information Act by an exemption in that Act for "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. . . ." 5 U.S.C. § 552(b)(6).
Accordingly, we construe Judge Oringer's order of August 2, 1978, as an order to the Secretary to comply with all Labor Department regulations regarding the confidentiality of medical information in its possession, e.g., 29 C.F.R. Parts 70 and 70a, and an order prohibiting release of the requested medical records under the Freedom of Information Act.
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In respondent to this order on August 7, 1978, WPP stated that it did not intend to comply. It contended that production of the profit and loss statements would amount to disclosure of a privileged trade secret and that examination of its employees' medical records by the Secretary and the Union would violate the employees' constitutional and statutory rights. Furthermore, WPP argued that the judge's requirement that the medical records remain confidential afforded wholly inadequate protection in that the records "would be revealed to persons or parties against whom the . . . order cannot be enforced."
On August 9, 1978, the Secretary responded to the judge's August 2 order by stating that WPP had failed to answer the interrogatories and produce the requested documents. In the absence of this information and data, the Secretary asserted that his case could not adequately be prepared for the hearing. With respect to the medical records sought, the Secretary stated that the information he needed was the height, weight, sex, age, and race of employees tested by WPP for respiratory functioning. He [*10] stated that he was not seeking the identity of the individual employees.
On August 10, 1978, WPP filed compelled answers to the Secretary's interrogatories and requests for production. Regarding Interrogatories Nos. 15-21 and Request for Production No. 7, WPP restated its refusal to produce the requested medical records. Specifically, WPP stated that "[i]nasmuch as Respondent . . . has expressed its intention not to produce these documents, the Respondent further assumes that complainant no longer desires this information." However, it agreed to immediately furnish to the Secretary the identity of all designated employees and a description of all medical management and surveillance of the respiratory functioning of these employees if the Secretary still desired this information. WPP further consented to comply with Request for Production No. 6 by making the corporate annual reports available to the Secretary, but it refused to produce the profit and loss statements sought by Request for Production No. 9.
On August 15, 1978, a pre-hearing conference was held before Judge Oringer to resolve the remaining discovery problems. At the outset, the judge ruled that WPP was not required [*11] to comply with Request for Production No. 9 by producing the profit and loss statements of its Lindale mill. He based this ruling on his holding that the economic feasibility of engineering and administrative controls would be determined on the basis of the economic viability of the company as a whole and not the viability of the Lindale mill. Later in the hearing, the Secretary reiterated his clarification of the information he was seeking in WPP's medical records. Although the judge was amenable to the deletion of personal identifiers from the medical records, including the exclusion of names, addresses, and social security numbers, he refused to grant WPP's request for a protective order limiting the examination of the records to a representative of the Secretary who is a federal employee. Instead, the judge ordered WPP to turn over the medical records to the Secretary and his designated expert, a professor at the Harvard School of Public Health. In a letter to Judge Oringer dated August 15, 1978, WPP refused to produce the medical records, even with personal identifiers deleted, "for inspection and copying by the Secretary, his witnesses, and the Union."
On August 18, 1978, [*12] Judge Oringer issued in Order of Modification in which he noted WPP's objection to turning over the medical records to the Union and further stated that the Union had never demanded the medical documents. Therefore, WPP was ordered to produce the records with the names, addresses, and social security numbers deleted for examination solely by the Secretary and his expert. In addition, the judge stated that a protective order would be granted and that failure by the Respondent to comply with the modified order would result in dismissal and vacation of WPP's notice of contest and answer.
Following issuance of the modified order, all three parties filed responses. By letter dated August 25, 1978, the Union waived its right to receive the medical records in order to expedite the proceedings and stated that it had no objections to the modified order. On August 30, 1978, the Secretary responded by supporting the order. He stated that the medical records were relevant due to the affirmative defenses raised by WPP n8 and that WPP's claim of privilege was unsupportable. On the same date, WPP responded by refusing to comply with the modified order due to the asserted inadequacy of the [*13] protection granted to its employees.
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n8 The affirmative defenses were raised in WPP's compelled answers to interrogatories Nos. 2 and 3 where the Respondent attacked the adequacy of the Secretary's testing methodology and asserted that its employees were protected by a medical surveillance program and personal protective equipment.
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II
The Respondent sought interlocutory review of the judge's June 7, 1978 order. The Commission granted the interlocutory appeal and the parties were requested to submit briefs on the following issues raised by WPP in its petition:
(1) Did the judge err in granting Complainant's Motion for Compelling Answers to Interrogatories Nos. 15 through 21 and Requests for Production Nos. 6 and 9. n9
(2) Assuming that Complainant is entitled to answers to his Interrogatories numbered 15 through 21, should the Judge have entered a protective order to ensure the confidentiality of said answers. If so, what type of protective order should the Judge have entered.
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n9 The issue of whether WPP shall comply with Request for Production No. 7, which concerns documents identified in Interrogatories Nos. 15 through 21, is also before the Commission on interlocutory appeal. This issue has been fully briefed by the parties.
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Events occurring since WPP filed its petition have altered the issues before us. In response to the August 2, 1978 order of Judge Oringer, the Secretary abandoned his request for the identity of WPP employees who have worked in the seven designated areas of the plant. By modified order of August 18, 1978, the judge ordered the deletion of personal identifiers from the medical records. In addition, WPP has agreed to furnish the Secretary a description of all medical management and surveillance of the respiratory functioning of employees in the designated areas. Accordingly, we conclude that the Secretary's motion to compel WPP to answer Interrogatories 15-21 has been rendered moot. n10 However, WPP continues to refuse to produce its medical records. Therefore, the issue before us is whether [*15] WPP must comply with the Secretary's Request for Production No. 7.
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n10 See Sosna v. Iowa, 419 U.S. 393, 402 (1975) (in the absence of a live controversy at the time of appellate review, the matter is moot); see generally, Note, Mootness on Appeal in the Supreme Court, 83 Harv. L. Rev. 1672, 1678 (1970).
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In addition, the issue regarding a protective order has been altered by events since the filing of WPP's petition. On August 2, 1978, Judge Oringer entered a protective order requiring the Secretary to maintain the confidentiality of employee medical records and to comply with applicable legal provisions. On August 18, that order was modified to permit deletion of personal identifiers from the records and examination solely by the Secretary and his expert. Therefore, the issue on interlocutory appeal is no longer whether the judge should have entered a protective order, but whether the order entered by the judge provides adequate protection.
Finally, the Secretary's motion to compel compliance [*16] with Request for Production No. 6 has been rendered partially moot because WPP has abandoned its objections to this request. In its compelled answers of August 10, 1978, WPP agreed to make the requested corporate annual reports available to the Secretary. Accordingly, that issue is no longer before us.
In the pre-hearing conference on August 15, 1978, the judge revoked his order compelling WPP to comply with Request for Production No. 9 by producing the profit and loss statements for the Lindale plant. The judge held that the economic feasibility issue would be judged on the basis of the economic viability of the company as a whole and that the requested statements were therefore irrelevant. Although WPP argues that this action renders the issue moot, both the Secretary and the Union disagree, arguing that the statements should be produced for inspection. Because this issue is within the scope of the Commission order granting the appeal, and there exists a genuine dispute on the merits between parties representing adverse legal interests, we conclude that the issue regarding Request for Production No. 9 remains before the Commission on appeal.
III
In Quality Stamping Products [*17] Co., 79 OSAHRC 28/F11, 7 BNA OSHC 1285, 1979 CCH OSHD P23,520 (No. 78-235, 1979), we held that the scope of permissible discovery in Commission proceedings is governed by the provisions of Fed. R. Civ. P. 26(b)(1). Although that case involved a motion to compel answers to interrogatories, the holding is equally applicable to a motion to compel compliance with a request for production of documents. See Fed. R. Civ. P. 34(a) and (b) and 37(a)(2). Under Rule 26(b)(1), a party may obtain discovery of any information relevant to the subject matter in the case unless the information is privileged. As stated in the rule, "[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."
Here, as in Quality Stamping, the parties disagree both as to whether the information sought is "relevant" and whether it is "privileged." Accordingly, "[a]s the rule indicates, the party seeking the information must first show that it is relevant to a material issue in the case before the question of privilege is even reached." Quality Stamping, supra, 7 BNA [*18] OSHC at 1287, 1979 CCH OSHD at p. 28,503.
As the party seeking the medical surveillance records designated in Request for Production No. 7, the Secretary asserts alternative grounds for finding the information requested "relevant." When he filed his motion to compel discovery, the Secretary contended that the requested information is relevant to WPP's claim that the method of sampling used during the inspection did not accurately reflect the health effects of cotton dust exposure to its employees. The Secretary argued that the medical records would tend to support or rebut that claim. In response to Judge Oringer's August 18, 1978 Order of Modification, the Secretary additionally contended that the requested information is relevant to WPP's assertion, as stated by the Secretary, "that the Secretary's reliance on engineering controls is unreasonable in light of respondent's medical surveillance program and personal protective equipment program."
In his brief to the Commission, the Secretary reasserted both of these grounds and expanded upon his reasoning. He noted that WPP had taken the position in a memorandum dated April 3, 1978, that the sampling device used by OSHA was unreliable [*19] and that it therefore did not accurately reflect cotton dust levels in WPP's plant. He further noted that WPP had taken the position in a pretrial conference on April 5, 1978, that the requirement of section 1910.1000(e) that administrative and engineering controls be implemented is not reasonably related to the purposes of the Act because personal protective equipment and medical surveillance programs provided adequate protection. In addition, he noted that WPP had argued, in seeking an indefinite continuance pending promulgation of a new cotton dust standard, that "employees at Respondent's Lindale facility can be protected by Respondent's respiratory protection program which includes the wearing of personal protective equipment and a medical surveillance program." (Petition for Leave to Appeal and for Stay, June 5, 1978.) Finally, the Secretary cited WPP's compelled answers to interrogatories, filed on August 10, 1978. Interrogatory No. 2 sought the basis for WPP's denial of the alleged violations. In reply, WPP stated, in pertinent part, that the "testing methods, procedures and the equipment used do not accurately reflect cotton dust levels or exposure or the health effects [*20] of such cotton dust, if any, on employees." Interrogatory No. 3 sought the basis for WPP's denial of the allegation that the alleged violations were "serious" within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(j). n11 In reply, WPP asserted, in pertinent part, "that its employees are protected from exposure to cotton dust by means of its medical surveillance program and by personal protective equipment." The Secretary argues that the medical surveillance records may aid him in rebutting the "affirmative defenses" raised in these statements by WPP.
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n11 Section 17(b) of the Act, 29 U.S.C. § 666(b), states that a civil penalty of up to $1000 "shall be assessed" for any "serious violation" of the Act. The term "serious violation" is defined in § 17(k), 29 U.S.C. § 666(j), as follows:
For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
[*21]
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In subsequent submissions to the Commission, the Secretary presented an alternative ground for finding the requested information relevant. He contends that the medical records are relevant regardless of WPP's defenses because the violations are alleged to be serious. While emphasizing his position that evidence of byssinosis and other respiratory diseases among WPP's employees need not be introduced to establish a prima facie violation, he argues that this evidence is relevant to his allegation that the violations were serious. Because WPP's medical surveillance records "would demonstrate the prevalence and extent and seriousness of the health hazard" at the Lindale mill, the Secretary argues that they are relevant to the "serious" allegation.
WPP asserts that its medical surveillance records are not relevant to any material issue in this case. It argues that proof regarding a medical surveillance program is not part of the Secretary's burden in establishing a violation of any of the cited standards and notes that it has informed the judge that it will not rely on any information in the records [*22] in presenting its defense. It argues that 29 C.F.R. § 1910.1000 requires employers to maintain cotton dust levels below a specified concentration regardless of whether employees suffer a loss of pulmonary function. Therefore, the Secretary's contention that medical surveillance records would tend to prove or disprove the accuracy of his testing methods is based on faulty reasoning. WPP also disputes the Secretary's contention that the medical records are relevant to its defense that its employees are adequately protected by personal protective equipment and its medical surveillance program. It notes that its compelled answers to interrogatories, cited by the Secretary, were filed four months after the Secretary filed his discovery requests. Moreover, WPP argues in its brief to the Commission, "Respondent never contended, as Complainant submits, that its medical surveillance program was a substitute for feasible engineering or administrative controls."
We agree with WPP that the ground for finding relevancy initially asserted by the Secretary is based upon faulty reasoning. We do not accept the Secretary's premise that there is a correlation between the accuracy of the sampling [*23] methods used at the Lindale mill and the incidence of byssinosis and other respiratory diseases among persons who have worked at the mill. We would not base a finding that the sampling results were accurate on evidence of a widespread incidence of byssinosis among WPP's employees. Nor would we find that the sampling results were inaccurate because few employees contracted this disease. Accordingly, we reject the Secretary's contention that the requested information is relevant to WPP's defense that the sampling methods used by the Secretary were unreliable.
We view WPP's statement that it has never contended that its medical surveillance program is a "substitute" for feasible controls as an abandonment of the claim asserted during the April 5, 1978 pretrial conference that the requirements of section 1910.1000(e) are not reasonably related to the purposes of the Act. However, the abandonment of this claim does not amount to an abandonment of WPP's contention that its employees were protected against health hazards by personal protective equipment and its medical surveillance program. WPP has raised this contention on numerous occasions and in numerous contexts during the course [*24] of this proceeding. Section 1910.134(a), which WPP is alleged to have violated, requires that "appropriate respirators shall be used pursuant to the following requirements." Appropriateness is determined on the basis of the hazards to which workers are exposed as well as on the basis of various fit, use, and maintenance requirements. See generally section 1910.134(b); American National Standards Institute ("ANSI"), American National Standard Practices for Respiratory Protection, z88.2-1969; Anaconda Aluminum Co. (No. 13102, March 31, 1981) (Cottine, Commissioner, concurring and dissenting opinion). I conclude that the question of whether WPP's employees were protected by personal protective equipment and its medical surveillance program is a material issue in this case. Clearly, the information in WPP's medical surveillance records would tend to either prove or disprove its contention that its employees were adequately protected by appropriate respirators. Accordingly, I agree with the Secretary and conclude that WPP's medical surveillance records are relevant to WPP's defense that its employees were protected by personal protective equipment and its medical surveillance [*25] program. n12
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n12 I reject WPP's contention that we cannot base our relevancy finding on this ground because it did not raise the defense until after the discovery requests were filed. The issue being decided is whether WPP should at this time be required to produce its medical surveillance records. This determination is made on the basis of the entire record, not the record as it existed at the time the discovery requests were filed.
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We also agree with the Secretary that the records are relevant regardless of the defense asserted by WPP. The Secretary has alleged that the violations are "serious" within the meaning of the Act. He therefore has alleged that there was "a substantial probability that death or serious physical harm could result from [the cited conditions]." See note 11 supra. While evidence that a violation caused death or serious physical harm is not necessary to prove an allegation that a violation was serious, this evidence is clearly probative of, and therefore relevant to, the allegation. [*26] Cf. Ralston-Purina Co., 79 OSAHRC 22/c11, 7 BNA OSHC 1302, 1979 CCH OSHD P23,507 (No. 76-2551, 1979) (evidence of fatality probative of allegation that employee was exposed to a "hazard"). In addition, evidence that a violation caused death or serious physical harm is relevant to a determination of the gravity of the violation -- one of the factors to be considered in determining the appropriate penalty to be assessed if a violation is found. Section 17(j) of the Act, 29 U.S.C. § 666(i). Therefore, we conclude that the Secretary has satisfied his burden of showing that the medical surveillance records are "relevant" within the meaning of Rule 26(b)(1) and proceed to WPP's claim that these records are privileged. Quality Stamping, supra.
IV
The Respondent asserts that the employees' medical files are protected from disclosure by the Georgia statutory physician-patient privilege n13 and by the constitutional right of privacy. The Secretary contends that Fed. R. Evid. 501 precludes application of the privilege to these proceedings and that the employees' constitutional rights have not been invaded. n14 Furthermore, the Secretary asserts that it is unclear whether [*27] WPP has standing to raise a claim of privacy for its employees. See, e.g., E.I. du Pont de Nemours and Co. v. Finklea, 442 F. Supp. 821 (S.D. W.Va. 1977). In its brief, WPP replies that standing is conferred by the fact that it is the custodian of the medical records. Therefore, it is the party that could incur legal liability for any wrongful disclosure or invasion of privacy. Moreover, WPP argues that standing is conferred upon it by the fact that the individuals possessing the right, i.e., the patient-employees, lack a forum for asserting their rights. n15
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n13 Georgia Code Annotated, § 38-418(b), provides:
No physician licensed under Code Chapter 84-9 shall be required to release any medical information concerning a patient, or in the case of a minor, by his or her parents or duly appointed guardian ad litem, except on written authorization or other waiver by the patient or on appropriate court order or subpoena; provided, however, that any physician releasing information under written authorization or other waiver by the patient or under court order or subpoena shall not be liable to the patient or any other person; provided, further, that the privilege shall be waived to the extent that the patient places his care and treatment or the nature and extent of his injuries at issue in any civil or criminal proceeding; and provided, further, that this subsection shall not apply to psychiatrists.
n14 The Secretary contends that the Georgia statutory provision should not apply to this proceeding because it did not become effective until after the request for the production of documents was filed and the Secretary's Motion to Compel was granted by Judge Oringer. Our disposition of the issues arising under the Georgia statute makes it unnecessary to decide this issue. In addition, the Secretary argues that the regulation published at 29 C.F.R. § 1910.20, Preservation of Records, which at paragraph (d) requires an employer to make available upon request to the Assistant Secretary all employee exposure and medical records, preempts the state privilege. We note, however, that the instant proceeding involves a motion to compel compliance with a discovery request and that the Secretary has not made any request or initiated any enforcement action under § 1910.20. We also note that the Secretary has promulgated and published in the Federal Register a revised § 1910.20, Access to Employee Exposure and Medical Records, 45 Fed. Reg. 35,212 (May 23, 1980), to be effective on August 21, 1980. The regulations are concerned with employee and designated representative as well as OSHA access to employee exposure and medical records.
n15 Though the patients are employees of WPP, the employment relationship is not asserted as a basis for standing. See United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir. 1980).
[*28]
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A.
The requirement of standing in federal courts originates in the case and controversy limitation of Article III and the principles of judicial restraint imposed by the Supreme Court. E.g., Singleton v. Wolff, 428 U.S. 106, 112 (1976); Association of Data Processing Service Organizations, Inc. v. Camp., 397 U.S. 150, 152-53 (1970); Barrows v. Jackson, 346 U.S. 249, 255 (1953). n16 A party must initially demonstrate that it suffers "a sufficiently direct threat of personal detriment" in order to support its standing. E.g., Planned Parenthood of Central Missouri v. Danforth, 423 U.S. 52, 62 (1976). See also Craig v. Boren, 429 U.S. 190, 194-95 (1976) ("injury-in-fact"). WPP's custodial obligation to the patient-employees and its private interest in avoiding liability under state law for unauthorized disclosure n17 provide an "adequate incentive" to guarantee the adverseness required for proper adjudication of this issue particularly in light of its involvement as a defending party. See Eisenstadt v. Baird, 405 U.S. 438, 443, 446 (1972); United States v. [*29] Westinghouse Electric Corp., 638 F.2d 570 (3d Cir. 1980). n18
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n16 The Respondent has not urged any relaxation of the case and controversy limitation or principles of judicial restraint in the Commission's formulation of its standing requirements even though the Commission's authority as an adjudicatory forum originates in Article I of the Constitution rather than Article III. See 29 U.S.C. § 651(a), (b); U.S. Const. art. I, sec. 8, cl. 3. See generally, The Constitution of the United States of America: Analysis and Interpretation, S.Doc. 92-82, 92d Cong., 2d Sess. 588-95 (1973).
n17 In his reply brief to the Commission, the Secretary argues that a final order of the Commission amounts to a "court order" within the scope of the enumerated exceptions in the Georgia statute. Consequently, the Secretary asserts that WPP would not violate the statute by disclosing the medical data. WPP objects to this contention and continues to urge that disclosure would ultimately result in liability. The interpretation of the Georgia statute is unresolved as a matter of state law. However, it is unnecessary for the Commission to resolve the issue of potential liability under the Georgia statute because a reasonable possibility exists that WPP could be sued for unauthorized disclosure, though the outcome may be favorable to WPP.
n18 Cf. Gen. Motors Corp., Central Foundry Div., 80 OSAHRC 42/A2, 8 BNA OSHC 1298, 1980 CCH OSHD P24,452 (No. 78-2696, 1980) (employer's status as a defending party to a citation accorded it standing to raise the defense that an enforcement action exceeded the Secretary's authority).
[*30]
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In order to overcome the prohibition against third party standing based on principles of judicial restraint, n19 the party seeking to assert the constitutional rights of others must show that it is a proper and effective advocate for the particular rights involved. E.g., Singleton v. Wulff, 428 U.S. at 112; Eisenstadt v. Baird, 405 U.S. at 455-56. Therefore, the Court examines "the relationship of the litigant to the person whose right he seeks to assert" and the ability of the non-party to independently assert his or her constitutional right. Id. at 114, 115-16.
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n19 See generally Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1972); Note, Standing to Assert Constitutional Jus Tertii, 88 Harv. L. Rev. 423 (1974).
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The confidential relationship between a physician and patient has been recognized as sufficient to permit a physician to assert the constitutional rights to [*31] privacy of a patient when the physician is a defendant. Griswold v. Connecticut 381 U.S. 479 (1975); see Singleton v. Wulff, 428 U.S. at 113; Doe v. Bolton, 410 U.S. 179, 188-89 (1973). As a custodian of the medical records arising from this physician-patient relationship, WPP maintains the confidentiality of these records and may properly be considered an agent of the physician when disclosure of the records might result in a breach of a constitutional right to privacy. See Griswold v. Connecticut, 381 U.S. at 481; Whalen v. Roe, 429 U.S. 589, 604 & n.33 (1977). n20 Thus, WPP has established the necessary relationship for standing. n21
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n20 In Whalen v. Roe, the Court considered the physicians' claims as "derivative" of the patients' constitutional rights. Id. at 604 & n.33; see Harris v. McRae, 100 S.Ct. 2671, 2689 n.21 (1980). It specifically declined to rule on the standing of the physicians' associations. 429 U.S. at 874 n.14; see also Doe v. Bolton, 410 U.S. at 189.
The custodian's claim is also conditional because the patient may waive his privacy interests in the medical records. See generally 8 Wigmore on Evidence § 2386 (McNaughton rev. 1961).
n21 Clearly, the relationship between the custodian-employer and the patient-employee is not as close as the relationship between the physician and the patient. See United States v. Westinghouse Elec. Corp., supra at 574 n.3.
[*32]
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Finally, an assessment must be made of the ability of those whose constitutional rights are at risk to independently assert their rights. Singleton v. Wulff, 428 U.S. at 115-16; see Eisenstadt v. Baird, 405 U.S. at 445. In this case, it cannot be concluded that the individuals possessing the constitutional rights are deprived of a form to raise their rights. See Barrow v. Jackson, 346 U.S. at 257. n22 The Commission is mandated to extend party status to employees and their representatives, 29 U.S.C. § 659(c); 29 C.F.R. § 2200.20, and others with an interest in the proceeding may intervene to assert their rights, 29 C.F.R. § 2200.21; Brown & Root, Inc., 80 OSAHRC , 7 BNA OSHC 1526, 1979 CCH OSHD P23,731 (No. 78-127, 1979) (lead & concurring opinions). n23 These procedural rules do not create insurmountable obstacles to the direct assertion of rights by the patient-employees. See Singleton v. Wulff, 428 U.S. at 117-18. However, in the context of pre-trial discovery, the custodian as a party-litigant plays a pivotal role if there is any constitutional right to privacy [*33] at risk in the disclosure of these medical records. Thus, the patient's "absence from court loses its tendency to suggest that his right is not truly at stake or truly important to him . . . ." Id. at 116.
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n22 WPP's claim that it is entitled to standing because the Union has sought to waive the employees' constitutional right is misdirected. The issue is whether the individuals holding the constitutional rights have a forum to vindicate those rights. As the Court observed in Singleton v. Wulff, ". . . it may be that in fact the holders of those rights do not wish to assert them, or will be able to enjoy them regardless of whether the in-court litigant is successful or not." 428 U.S. at 113-14.
n23 The authorized employee representative also has standing to raise these constitutional interests in light of its statutory obligation of fair representation, 29 U.S.C. § 158(b) (1976), its appearance as a party in this Commission proceeding under Commission Rule 20, 29 C.F.R. § 2200.20; Babcock & Wilcox 80 OSAHRC 95/A2, 8 BNA OSHC 2102, 1980 CCH OSHD P24,812 (No. 78-446, 1980) (lead & dissenting opins.), and its function as a membership organization, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 499 (1959); NAACP v. Button, 371 U.S. 415 (1963).
[*34]
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In light of the Respondent's specific interest as a custodian of these medical records, WPP has standing in this enforcement action to assert the constitutional rights of the patient-employees as a bar to disclosure of their medical records. n24
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n24 Though WPP has standing to assert the constitutional rights of its employees, its private interest simply assures adverseness. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 731-732, 740 (1972). This standing does not entitle it to adjudicate its private interests as a custodian. See id. at 736-741 explaining Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942).
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B.
The Respondent contends that the medical records fall outside the ambit of permissible discovery because they are protected from disclosure by the provisions of Georgia Code Annotated, § 38-418(b). n25 WPP further contends that a statutory physician-patient privilege is a "privilege" within the meaning [*35] of Fed. R. Civ. P. 26(b)(1). 4 Moore's Federal Practice § 26.60[2]. n26 However, the Secretary contends that the judge's ruling should be sustained because the privilege is inapplicable to Commission proceedings.
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n25 See note 14 supra.
n26 By letter dated August 28, 1978, the authorized employee representative indicated that it waived the right to receive the medical records in order to expedite the hearing. On review, WPP urges that the judge erred in concluding that the union had validly waived the employees' statutory physician-patient privilege. WPP's argument fails to distinguish between a waiver of the substantive privilege protecting medical records and a waiver of receipt of the records subject to discovery.
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At common law, the physician-patient privilege was not recognized. 8 Wigmore on Evidence § 2380 (McNaughton rev. 1961). As a result, legislative enactment was necessary to establish the privilege in the state judicial systems. Id. n27 Prior to the adoption of the Federal Rules [*36] of Evidence, the federal courts did not recognize the physician-patient privilege as a matter of federal common law. Kerr v. United States Dist. Court for Northern Dist. of California, 511 F.2d 192, 197 (9th Cir. 1975) (reviewing authorities); United States v. Westinghouse Electric Corp., 483 F.Supp. 1265 (W.D.Pa. 1980), aff'd, 638 F.2d 570 (3d Cir. 1980); cf. United States v. Meagher, 531 F.2d 752 (5th Cir.), cert. denied 429 U.S. 853 (1976) (physician-patient privilege in federal criminal prosecution); General Motors Corp. v. Director of NIOSH, 636 F.2d 163 (6th Cir. 1980), petition for cert. filed, 49 U.S.L.W. 3763 (U.S. March 30, 1981) (No. 80-1646); Osterneck v. E.R. Barwick Indus., Inc., 82 F.R.D. 81, 87 (N.D.Ga. 1979). n28 Rule 501 of the Federal Rules of Evidence n29 preserves the principle that privileges are to be governed by the federal common law when federal substantive law supplies the rule of decision. H.R. Conf. Rep. No. 93-1597, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 7100-01.
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n27 Similarly, in civil actions or other proceedings in federal district courts, state privilege law applies "to an element of a claim or defense as to which a state law supplies the rule of decision." Fed. R. Evid. 501.
n28 Numerous privileges have been consistently recognized by the federal common law. Among there are the following privileges: attorney-client, spousal testimonial, spousal confidential communications, clergyman-penitent, trade secrets, secrets of state, and informer's identity. Louisell & Mueller, § 201 (1978). However, the physician-patient privilege has not been accepted into the federal common law and remains dependent upon statutory enactment. United States v. Westinghouse Elec. Corp., supra at 1268.
n29 Federal Rule of Evidence 501 provides:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the privilege of a witness, person, government, State or political subdivision thereof shall be determined in accordance with State law.
[*37]
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This case arises exclusively under a federal statute and its implementing regulations which supply the rules of decision for determining this controversy. 29 U.S.C. § § 651-668. Moreover, Commission Rule 72 makes the rules of evidence in the United States district courts applicable to Commission proceedings to the extent practicable. 29 C.F.R. § 2200.72; see 29 U.S.C. § 659(c) (adopting by reference the Federal Rules of Civil Procedure in the absence of a specific Commission rule of procedure). Accordingly, we conclude that the federal common law of privilege applies and that the Georgia physician-patient privilege is inapplicable to these proceedings. n30 As a consequence, employee medical records may not be withheld from discovery on the basis of this state privilege. n31
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n30 WPP asserts that Payne v. Howard, 75 F.R.D. 465 (D.D.C. 1977) is dispositive of the privilege issue. That case involved a patient's malpractice suit against his dentist. The court ruled that the doctor's medical records concerning other patients fell within the scope of the District of Columbia privilege statute and were not discoverable. The D.C. physician-patient privilege, adopted by Congress, was expressly binding on all courts sitting in the District. See U.S. Const., art. I, § 8, cl. 17. In contrast, the Georgia privilege statute does not supply the governing rule of law for cases arising under the Act. Therefore, Payne v. Howard, supra, is factually distinguishable, and we accord it little weight.
n31 Though the Georgia statute creating the physician-patient privilege is not applicable in Commission proceedings, the protective order to be entered by the Commission to preserve the confidentiality of this information protects the same privacy interest sought to be protected by the state statute. See pp. 29-33 infra.
[*38]
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C.
WPP argues that the disclosure of the medical records would constitute an unwarranted invasion of the employees' privacy. Although there is no explicit constitutional provision guaranteeing privacy in medical records, the broader right of privacy derives from various constitutional rights contained in the First, Fourth, Fifth, and Fourteenth Amendments as well as the "penumbras" of the Bill of Rights. Griswold v. Connecticut, 381 U.S. 479 (1965). Moreover, recent cases indicate recognition of a privacy interest in one's medical records. In Whalen v. Roe, 429 U.S. 589 (1977), doctors and patients joined to challenge the constitutionality of a New York statute requiring the transmittal of copies of prescriptions for particular drugs to the state. The Supreme Court ruled that the disclosure of private medical information to state officials charged with the responsibility for the community's health was a reasonable exercise of the state's police power and did not automatically amount to an impermissible invasion of privacy. A similar conclusion was reached by the court in E.I. du Pont [*39] de Nemours & Co. v. Finklea, supra. In that case, the National Institute of Occupational Safety and Health ("NIOSH") sought the production of employee medical records in order to investigate employee allegations that the incidence of cancer among workers at du Pont's plant was unusually high. The court recognized that the employee medical files were protected by the constitutional right of privacy but reasoned that disclosure pursuant to a NIOSH investigation would not abridge that right. The court further ordered NIOSH to preserve the confidentiality of the records. n32
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n32 In United States v. Westinghouse Elec. Corp., supra, the third circuit affirmed an order enforcing a subpoena duces tecum which required the production of employee medical records in personally identifiable form for use by NIOSH as part of a health hazard evaluation. The court concluded that, "the interest in occupational safety and health to the employees in the particular plant, employees in other plants, future employees and the public at large is substantial. It ranks with the other public interests which have been found to justify intrusion into records and information normally considered private." 638 F.2d at 579. However, the court required NIOSH to provide notice to affected employees so that they could object in writing in order to protect specific information.
[*40]
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WPP argues that the Whalen and du Pont v. Finklea cases are distinguishable because the Secretary seeks production of the medical records for their evidentiary value in the course of an administrative hearing.
It is clear from the above cases that the courts balanced the competing interests to determine whether the state's interest in controlling drugs or the federal interest in protecting NIOSH's congressionally mandated research into occupational health outweighed the individual's interest in the privacy of his medical records. However, the nature of the intrusion into the employee's privacy must be assessed and, insofar as possible, the degree of any intrusion alleviated before making a decision between the competing interests of the individual and the government. Accordingly, interference with the employees' right of privacy in their medical records is precluded only when that interference is unwarranted and inadequately restricted. Whalen v. Roe, supra; see E.I. du Pont de Nemours & Co. v. Finklea, supra; United States v. Westinghouse Electric Corp., supra; [*41] General Motors Corp. v. Director of NIOSH, supra. In the instant case, the interest of the federal government in assuring the health and safety of workers by requesting full disclosure of occupational health hazards is critically important and comparable to the disclosures required in Whalen, du Pont and Westinghouse. The relevance of the employee medical records to the fundamental issue of whether WPP has selected appropriate respirators to protect its employees warrants their disclosure in this case. The remedial purpose of the Act can only be served by permitting examination of the medical records. However, that examination must be adequately restricted to ensure the confidentiality of the medical data. Judge Oringer partially ensured protection of the information from unwarranted disclosure by ordering the deletion of personal identifies from the files and by limiting access to the files to the Secretary and his experts. These requirements and additional restrictions that the Commission now deems necessary provide protection to the employees whose records are sought. In view of these protective measures and the important governmental interest to be served [*42] by an analysis of the records, production of the documents is warranted. Accordingly, I conclude that the medical records are discoverable items because they are relevant and neither the Georgia statutory physician-patient privilege nor the constitutional right of privacy prohibits disclosure under the conditions described in the following protective order.
VI
The Respondent contends that the judge's protective order requiring deletion of personal identifiers and examination only by the Secretary and his expert is inadequate. WPP principally argues that even with names, addresses, and social security numbers removed, the identity of individual employees is nevertheless discernable. Moreover, WPP strenuously objects to the inspection of the medical records by a non-federal employee.
In Owens-Illinois, Inc., 78 OSAHRC 105/C8, 6 BNA OSHC 2162, 1978 CCH OSHD P23,218 (No. 77-648, 1978), the Commission held that the likelihood of disclosure of trade secrets to an expert who is not a federal employee does not preclude the granting of a motion for entry upon the employer's land by that expert as long as an adequate protective order is entered to ensure that the trade secrets remain [*43] confidential. The Commission based its ruling on its conclusion that use of protective orders requiring non-federal experts not to reveal trade secrets would avoid imposing excessive restraints on the Secretary's trial of cases while adequately protecting the employer's legitimate interests in preserving the confidentiality of their trade secrets.
Although the decision in Owens-Illinois, supra, specifically dealt with the protection of trade secrets, that holding is nevertheless applicable to WPP's assertion that the medical records are confidential. Section 15 of the Act, 29 U.S.C. § 664, n33 provides for the protection of trade secrets as referenced in 18 U.S.C. § 1905. However, section 1905 refers to various classes of information without defining the term "trade secret." Specifically protected from disclosure is any information that
concerns or relates to trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association . . . .
Furthermore, both former Commission Rule 11, 29 C.F.R. § 2200.11 [*44] (1979) (amended 44 Fed. Reg. 70,106, 70,110 (1979)), and current Rule 11, 44 Fed. Reg. 70,106, 70,111 (to be codified in 29 C.F.R. § 2200.11), entitle trade secrets and "other confidential information" encompassed by 18 U.S.C. § 1905 to protection from disclosure. Thus, the protection of confidential information is essentially a policy determination that finds statutory support in section 1905. Although section 1905 is expressly limited to instances of disclosure by federal employees, it indicates a Congressional determination that numerous confidential matters, including trade secrets, warrant protection. Consequently, the rationale applied in Owens-Illinois and the holding of that case with respect to the protection afforded trade secrets under 29 U.S.C. § 664 and Commission Rule 11 are properly extended to other confidential matters. See American Can Co., 79 OSAHRC 102/A2, 7 BNA OSHC 1947, 1979 CCH OSHD P24,066 (No. 76-3969, 1979) (concurring and dissenting opinions).
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n33 Section 15 states the following:
All information reported to or otherwise obtained by the Secretary or his representative in connection with any inspection or proceeding under this Act which contains or which might reveal a trade secret referred to in § 1905 of title 18 of the United States Code shall be considered confidential for the purpose of that section, except that such information may be disclosed to other officers or employees concerned with carrying out this Act or when relevant in any proceeding under this Act. In any such proceeding the Secretary, the Commission, or the court shall issue such orders as may be appropriate to protect the confidenciality of trade secrets.
[*45]
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Accordingly, WPP's objection to the inspection of the employee medical files is rejected, but Judge Oringer's order is modified. In addition to deleting personal identifiers and limiting examination to the Secretary and his expert, the Secretary's expert is ordered to sign and abide by a written oath stating that any information obtained by him during the examination will be disclosed exclusively to the Secretary's representatives who are responsible for the litigation of this case. Furthermore, the Secretary is to include in his contract with the expert a non-disclosure provision, identical in content to the oath, indicating that the employees whose medical files are obtained are to be made third party beneficiaries of the provision and have the right to enforce that contract provision. These requirements are in conformity with the provisions of Owens-Illinois, Inc., supra.
We recognize WPP's concern that even with obvious personal identifiers removed from medical files, examination of files might indirectly reveal the identity of individual employees. However, we conclude that the documents [*46] should be produced because the protective order minimizes the potential for personal identification of the employees and an important governmental function is served by an analysis of these records. n34 We also note that the Secretary emphasizes in his Reply Brief that, although it will be necessary for his expert to review the medical records, only a summary of those records will be introduced into the record at trial.
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n34 In United States v. Westinghouse Elec. Corp., supra, medical files were ordered to be produced in personally identifiable form.
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Accordingly, we modify the judge's order as follows:
(1) Examination of and access to the records will be limited to Department of Labor employees and expert consultants retained by the Department of Labor; and
(2) The Secretary, his representatives, and expert consultants are prohibited from further disseminating and copying the records and are ordered to comply with Department of Labor regulations on confidential information. See 29 C.F.R. Parts 70 and [*47] 70a. n35 Specifically, they are prohibited from disclosing any of the medical information to the public or other federal agencies pursuant to section 552(b)(6) of the Freedom of Information Act, 5 U.S.C. § 552. In addition, the Secretary must arrange for the physical security of the medical records and their return to the Respondent. Furthermore, the parties are to notify Judge Oringer of any violation of the above order.
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n35 The Secretary's Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records, 45 Fed. Reg. 35,294 (1980), effective August 21, 1980 (to be codified in 29 C.F.R. § 1913.10), which provide safeguards to protect individual privacy, at 45 Fed. Reg. 35,295 (1980) (to be codified in § 1913.10(b)(5)) state as follows:
(5) This section does not apply to agency access to, or the use of, personally identifiable employee medical information obtained in the course of litigation.
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We conclude that the judge's protective order as modified adequately preserves the employees' privacy [*48] rights and does not constitute an impermissible invasion of their constitutional rights. du Pont v. Finklea, supra. Inasmuch as the information sought is relevant and not privileged, WPP is ordered to comply with the Secretary's Request for Production No. 7. n36
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n36 In its brief to the Commission, WPP argues that disclosure of the medical records is prohibited by implication of § 6(b)(7) of the Act. Section 6(b)(7) provides, in relevant part, that when the Secretary promulgates a standard requiring the use of warning labels, he may also require medical examinations for employees exposed to health hazards in order to determine the measurable health effects. The results of those examinations shall be furnished to the Secretary of Labor, or the Secretary of Health, Education and Welfare, and, at the request of the employee, to his physician. The Respondent's argument is inapposite. Section 6(b)(7) is limited in scope to research activities. The standards cited in this case do not require WPP to maintain medical files and do not affect the dissemination of medical information collected for purposes other than research.
[*49]
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VII
The Respondent argued to the judge that production of the profit and loss statements for its Lindale mill pursuant to the Secretary's Request for Production No. 9 would amount to the disclosure of a privileged trade secret. WPP consistently refused to produce those documents, and subsequent to the filing of the interlocutory appeal Judge Oringer ruled that disclosure of the profit and loss statements was unnecessary because the determination of economic feasibility would be based on the financial viability of the entire company rather than the Lindale mill. Although WPP asserts on review that the judge's action renders Request for Production No. 9 moot, the Secretary and the union argue to the contrary that the statements should be produced for inspection. The Commission has held that matters of economic feasibility are properly considered on a company-wide basis. The Commission reasoned that this allows research and development expenditures to be spread over a large number of plants, thus permitting economies of scale to be given appropriate consideration. See Continental Can Co., [*50] 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1548 n.17, 1976-77 CCH OSHD P21,009, p. 25,257 n.17 (No. 3973 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977). Accordingly, we affirm Judge Oringer's ruling that the profit and loss statement for the Lindale mill need not be produced.
SO ORDERED.
CONCURBY: CLEARY
CONCUR:
CLEARY, Commissioner, concurring:
I agree with the lead opinion in affirming, as modified, the judge's order granting the Secretary's motion to compel discovery as to the Secretary's request for production no. 7, which sought studies, reports and tests, including medical records, concerning the employees of Respondent West Point Pepperell's Lindale, Georgia mill. I also agree that the judge was correct in denying the Secretary's motion to compel discovery as to request for production no. 9, which sought profit and loss statements of the Lindale mill. However, my analysis varies somewhat from that of Commissioner Cottine.
West Point Pepperell, Inc., (WPP) is charged with committing serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678, by exposing certain of its Lindale mill employees to impermissibly high concentrations of airborne cotton [*51] dust, failing to implement feasible administrative or engineering controls to reduce cotton dust exposure, and failing to utilize appropriate respirators when engineering controls were not employed. n1 As part of its pre-trial discovery, the Secretary sought to obtain employee medical records from WPP. Over WPP's objection, the judge compelled production of these records with the employees' names, addresses, and Social Security numbers deleted. He also ordered that the confidentiality of the records be maintained. The judge's ruling compelling production of the medical records is now before us on interlocutory appeal.
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n1 The standards allegedly violated are 29 C.F.R. § § 1910.1000(a)(2), 1910.1000(e), and 1910.134(a)(1). 29 C.F.R. § 1910.1000(a)(2) states as follows:
§ 1910.1000 Air contaminants.
An employee's exposure to any material listed in table Z-1, Z-2, or Z-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.
(a) Table Z-1:
(2) Other materials -- 8-hour time weighted averages. An employee's exposure to any material in table Z-1, the name of which is not preceded by "C", in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table.
The entry for cotton dust on table Z-1 provides a figure of one milligram of particulate for cubic meter of air and is not preceded by "C."
29 C.F.R. § 1910.1000(e) states as follows:
(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competant industrial hygienist or other technically qualified person.
29 C.F.R. § 1910.134(a)(1) states as follows:
§ 1910.134 Respiratory protection.
(a) Permissible practice. (1) In the control of those occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors, the primary objective shall be to prevent atmospheric contamination. This shall be accomplished as far as feasible by accepted engineering control measures (for example, enclosure or confinement of the operation, general and local ventilation, and substitution of less toxic materials). When effective engineering controls are not feasible, or while they are being instituted, appropriate respirators shall be used pursuant to the following requirements.
[*52]
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I
Under Fed. R. Civ. P. 26(b)(1), the threshold showing that a party seeking to compel discovery must make is that the items sought are relevant to the subject matter involved in the case. n2 Newport News Shipbuilding & Drydock Co., 80 OSAHRC 118/C7, 9 BNA OSHC 1120, 1980 CCH OSHD P24,974 No. 15046, 1980); Newport News Shipbuilding & Drydock Co., 80 OSAHRC 119/A2, 9 BNA OSHC 1085, 1980 CCH OSHD P25,003 (No. 76-171, 1980); Massman-Johnson (Luling), 80 OSAHRC 44/B8, 8 BNA OSHC 1369, 1980 CCH OSHD P24,436 (No. 76-1484, 1980), appeal docketed, No. 80-3414 (5th Cir. June 2, 1980); Quality Stamping Products Co, 79 OSAHRC 28/F11, 7 BNA OSHC 1285, 1979 CCH OSHD P23,520 (No. 78-235, 1979); Thomas A. Galante & Sons, Inc., OSAHRC , 6 BNA OSHC 1945, 1978 CCH OSHD P22,984 (No. 77-2512, 1978). The Secretary has asserted that the medical records are relevant to the subject matter of this case for numerous reasons, which are set forth in the lead opinion. I agree that the medical records are relevant because they may tend to show whether the alleged violations were serious, and they may [*53] tend to show the gravity of alleged violations, which is a factor the Commission is required to consider in determining penalty assessment. 29 U.S.C. § 666(i). Additionally, the medical records may tend to show whether the respirators used by WPP's employees were appropriate. However, I reject, as does the lead opinion, the Secretary's argument that the medical records are relevant to WPP's contention that the cotton dust sampling performed by the Secretary at the Lindale mill was inaccurate. The relationship between the respiratory condition of the Lindale employees, who presumably have worked at the mill for some time, and the accuracy of the cotton dust sampling performed by the Secretary's compliance officer during a single visit to the mill is too tenuous for the employee medical records to be relevant on this ground.
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n2 The proceedings of the Commission are in accordance with the Federal Rules of Civil Procedure unless the Commission has adopted a different rule. 29 U.S.C. § 661(f); Marshall v. Monroe & Sons, Inc., 615 F.2d 1156 (6th Cir. 1980). Since the Commission has adopted no general rule governing discovery, Fed. R. Civ. P. 26 applies to Commission proceedings.
[*54]
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II
Once the Secretary establishes, as he has done here, the relevance of the employee medical records to material issues in the case, he is entitled to obtain the records unless WPP demonstrates that a privilege or other good cause exists which warrants denying or limiting their discovery. Fed. R. Civ. P. 26; Massman-Johnson (Luling), supra; Thomas A. Galante, supra. WPP argues that discovery of the medical records should not be ordered because their disclosure would violate a Georgia physician-patient privilege statute and would violate the employees' constitutional right of privacy.
A
I agree with the lead opinion that the state physician-patient privilege statute is inapplicable to the proceedings of the Commission, a federal agency, and that there is no physician-patient privilege under federal law. Federal courts that have considered this argument is cases where the National Institute for Occupational Safety and Health (NIOSH) sought to obtain employee medical records from employers have reached the same conclusion. General Motors Corp. v. Director of NIOSH, 636 F.2d 163 [*55] (6th Cir. 1980), petition for cert. filed, 49 U.S.L.W. 3763 (U.S. March 30, 1980) (No. 80-1646) (Ohio physician-patient privilege statute); United States v. Westinghouse Electric Corp., 438 F. Supp. 1265, 1268-69 (W.D. Pa. 1980), remanded on other grounds, 638 F.2d 570 (3d Cir. 1980) (Pa. statute); United States v. Allis-Chalmers Corp., 498 F. Supp. 1027 (E.D. Wis. 1980). Since those cases are closely analogous to the matter before us, their analysis and rejection of the physician-patient privilege claim is highly relevant here, and I would adopt their reasoning.
B
In confronting WPP's privacy claim, the lead opinion is correct in recognizing that, in the wake of Whelan v. Roe, 429 U.S. 589 (1977), courts balance the competing interests to determine whether the governmental intrusion into individuals' privacy is warranted by the public purpose it is designed to effectuate. n4 As the Third Circuit recently stated in a case where NIOSH sought to obtain employee medical records from an employer:
In the cases in which a court has allowed some intrusion into the zone of privacy surrounding medical records, it has usually done so only after finding that the societal [*56] interest in disclosure outweighs the privacy interest on the specific facts of the case.
United States v. Westinghouse Electric Corp., 638 F.2d at 578. Rather than performing this balancing test on the specific facts of this case, however, the lead opinion treats the question as an abstract generality and sweepingly states:
[T]he interest of the federal government in assuring the health and safety of workers by requesting full disclosure of occupational health hazards is critically important and comparable to the disclosures required in Whalen, DuPont and Westinghouse. The relevance of the employee medical records to the fundamental issue of whether WPP has selected appropriate respirators to protect its employees warrants their disclosure in this case. The remedial purpose of the Act can only be served by permitting examination of the medical records.
P. 30 supra. I believe a closer analysis of the particular facts before us is required.
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n4 I agree with the lead opinion that WPP has standing to assert its employees' constitutional right of privacy. See United States v. Westinghouse Elec. Corp., supra.
[*57]
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Here the medical records sought by the Secretary would be of limited use to him in proving violations of the cited standards. As the Secretary contends, the employee medical records will be of possible use in demonstrating that the alleged violations were properly characterized as serious and in demonstrating the gravity of the alleged violation. To the extent the medical records reveal incidence of cotton dust-related disease among the employees, the records would tend to support the Secretary as to these two elements. However, the seriousness and gravity of the alleged violations could be shown by other means. Indeed, in our recent decision in Anaconda Aluminum Co., 81 OSAHRC , 9 BNA OSHC 1460, 1981 CCH OSHD P (No. 13102, 1981), a case concerning excessive employee exposure to a carcinogenic air contaminant, coal tar pitch volatiles ("CTPV"), we held that in deciding whether a violation is serious, we look to the hazard against which the standard is intended to protect. There we found the violation to be serious because the air contaminant standard's purpose in limiting exposure to [*58] CTPV was to protect employees against contracting a life-threatening disease. The Secretary could employ a similar analysis in attempting to show the seriousness of the alleged violations here. Additionally, evidence as to the length of time employees were exposed to excessive concentrations of airborne cotton dust and evidence as to the length of exposure that is necessary to result in cotton dust-related disease also would be probative of the seriousness and gravity issues. See, e.g., Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127 (6th Cir. 1978). Thus, the medical records are of possible value to the Secretary in relation to the issues of "seriousness" and "gravity" but are not a necessity.
The employee medical records also may be of some use to the Secretary in showing that the respirators used by WPP's employees exposed to cotton dust were not appropriate (or, as the Secretary characterizes the issue, the records may be useful in rebutting WPP's defense that its employees were protected from cotton dust exposure by its personal protective equipment program). Again, however, there is other probative evidence that may be brought to bear on this issue. We recently [*59] examined the adequacy of an employer's respiratory protection program in Anaconda Aluminum Co. There we concluded that generally it is appropriate to measure the adequacy of respirators by determining whether the amount of the air contaminant breathed by the employees, after adjustment for protection factors properly assigned the respirators, exceeds the limit established by the standard governing exposure to the contaminant in question. Application of this approach to the respirators used by WPP would be the most efficient means of demonstrating the appropriateness or inappropriateness of WPP's respirators. Hence, the employee medical records are of possible value to the Secretary as they relate to the issue of WPP's respirators, but they are not vital to his case.
The Secretary's need for the medical records must be weighed against the abridgement of the employees' privacy that would result from disclosure of the records to the Secretary. It is apparent from the "sanitized" condition and routine nature of the medical records that the intrusion into the employees' privacy resulting from disclosure of the medical records here would be minimal. The judge ordered, with the [*60] Secretary's consent, that the employees' names, addresses, and Social Security numbers be deleted from the medical records before the records are turned over to the Secretary. Thus, the possibility that any of the medical records could be identified as that of a specific employee -- particularly by the Secretary's representatives, who presumably do not know WPP's employees personally -- is remote. Moreover, that is no assertion that the medical records contain information other than the results of routine monitoring and examinations of the employees related to their exposure to cotton dust and other workplace substances. We have no indication that any medical matters of a more intimate nature are noted in the records. Finally, the judge's order, as modified by the Commission in the manner described in the lead opinion, limits disclosure of the medical records to the Secretary and his outside expert employed in this case. In sum, then, the deletion of personal identifiers from the records, the restrictions on the records' disclosure, and the routine nature of their contents renders the invasion of privacy here negligible.
Since the invasion of privacy occasioned by the contemplated [*61] disclosure of the medical records would be minimal, while the Secretary's need for use of the records is valid, the balancing of these interests favors the Secretary. On this basis, I would affirm the judge's order compelling production of the employee medical records as sought by the Secretary's request for production no. 7.
III
I also would affirm the judge's ruling denying the Secretary's motion to compel discovery as to request for production no. 9, which sought profit and loss statements of WPP's Lindale mill. The Commission has not addressed the question of whether the Secretary must show that the administrative or engineering controls he would have the employer implement are economically feasible in order to prove a violation of the air contaminant standard in issue here, 29 C.F.R. § 1910.1000. However, the Commission has ruled that economic feasibility is part of the Secretary's burden in proving a violation of the noise standard, 29 C.F.R. § 1910.95. Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD P24,555 (No. 76-222, 1980). I noted in my concurring opinion in that case that, in considering economic feasibility under that standard, economics [*62] comes into play at two separate points. First, the cost of the suggested abatement controls is considered as part of the feasibility determination. Additionally, when the suggested controls have been shown to be feasible, the financial situation of the employer can play a role in fashioning an appropriate abatement order if the issue has been raised by the employer.
The profit and loss statements sought by the Secretary here have no bearing on the cost of the proposed abatement controls. The statements also have little relevance to the overall financial condition of WPP, which is a large corporation, since they pertain only to the Lindale mill. Moreover, WPP consented to divulge to the Secretary its corporate annual report for several recent years, which should provide a much clearer indication of WPP's financial situation than would the profit and loss statements of a single mill. Therefore, I agree in affirming the judge's refusal to compel discovery of the profit and loss statements for the Lindale mill.
DISSENTBY: BARNAKO (In Part)
DISSENT:
BARNAKO, Acting Chairman, dissenting in part:
The Secretary of Labor seeks to obtain medical records of employees at the Lindale, Georgia mill of Respondent, [*63] West Point Pepperell, Inc. (WPP), in order to prove that WPP committed serious violations of certain standards issued under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678. Specifically, the Secretary cited WPP for allegedly violating the standard at 29 C.F.R. § 1910.1000(a)(2) by exposing some of its Lindale employees to excessive concentrations of airborne cotton dust. n1 Additionally, WPP was cited for violating 29 C.F.R. § 1910.1000(e) by failing to reduce cotton dust exposure through feasible administrative or engineering controls, n2 and it was charged with violating 29 C.F.R. § 1910.134(a)(1) for failing to use appropriate respirators to reduce cotton dust exposure. n3 Despite WPP's objections, the administrative law judge ordered that the requested employee medical records be turned over to the Secretary, albeit with the employees' names, addresses, and Social Security numbers deleted. My colleagues affirm the judge's action in requiring the disclosure of the records, although they modify the judge's order by requiring the entry of a protective order whereby, among other things, the Secretary's expert must sign a written oath stating that any information [*64] obtained by him concerning the medical records will be disclosed exclusively to the Secretary's representatives who are responsible for the litigation of this case. My colleagues' action constitutes an unwarranted infringement of the right to privacy. I, therefore, dissent.
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n1 29 C.F.R. § 1910.1000(a)(2) states as follows:
§ 1910.1000 Air contaminants.
An employee's exposure to any material listed in table Z-1, Z-2, or Z-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.
(a) Table Z-1:
(2) Other materials -- 8-hour time weighted averages. An employee's exposure to any material in table Z-1, the name of which is not preceded by "C", in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table.
The entry for cotton dust on table Z-1 provides a figure of one milligram of particulate per cubic meter of air and is not preceded by "C."
n2 29 C.F.R. § 1910.1000(e) states as follows:
§ 1910.1000 Air contaminants.
(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person.
n3 29 C.F.R. § 1910.134(a)(1) states as follows:
§ 1910.134 Respiratory protection.
(a) Permissible practice. (1) In the control of those occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors, the primary objective shall be to prevent atmospheric contamination. This shall be accomplished as far as feasible by accepted engineering control measures (for example, enclosure or confinement of the operation, general and local ventilation, and substitution of less toxic materials). When effective engineering controls are not feasible, of while they are being instituted, appropriate respirators shall the used pursuant to the following requirements.
[*65]
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In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court addressed whether the State of New York may require doctors to disclose to the State the names and addresses of persons who had obtained certain potentially harmful prescription drugs. Although the Court upheld such action, it noted that an individual's interest in avoiding disclosure of personal matters and in making certain kinds of important decisions is entitled to constitutional protection.
Employee medical records are within the ambit of materials entitled to privacy protection. United States v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3rd Cir. 1980). Accordingly, as my colleagues note, it is not enough that the medical records the Secretary seeks to have disclosed are relevant to the subject matter of the pending action. n4 Rather, in determining whether to order disclosure, the Secretary's need for the medical records must be balanced against the privacy interest of the employees in their medical records. E.g., United States v. Westinghouse Electric Corp., 638 F.2d at 578. n5
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n4 I agree with my colleagues that the medical records are relevant to whether the respirators were appropriate within the meaning of 29 C.F.R. § 1910.134(a)(1), to whether the violations were serious within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(j), and to whether the penalty proposed by the Secretary should be assessed. In addition the medical records may be relevant to the economic feasibility of engineering controls to reduce exposure to cotton dust, provided the costs of controls are weighed against the benefits to be achieved. See note 9, infra.
n5 For the reasons set forth by Commissioner Cottine, WPP has standing to assert its employees' right of privacy in this proceeding. As Commissioner Cottine notes, the Georgia physician-patient privilege statute is inapplicable to Commission proceedings and the federal common law of privilege applies.
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In the cases in which the courts have allowed some intrusion into the zone of privacy, the governmental interest in disclosure has been compelling. In the NIOSH subpoena cases [*67] on which the lead opinion relies in concluding that the medical records should be disclosed, United States v. Westinghouse Electric Corp., supra; General Motors Corp. v. Director of NIOSH, 636 F.2d 163 (6th Cir. 1980), pet. for cert filed, 49 U.S.L.W. 3763 (U.S. March 30, 1981) (No. 80-1646); and E.I. duPont deNemours & Co. v. Finklea, 442 F. Supp. 821 (S.D.W. Va. 1977), NIOSH was conducting health hazard evaluations of particular workplaces to determine whether certain substances to which employees were exposed had toxic effects. In that context, the courts ordered enforcement of NIOSH subpoenas seeking employee medical records, because, among other things, NIOSH would be unable to adequately perform its health hazard evaluations without such records.
In Westinghouse Electric Corp., NIOSH received a request from the authorized employee representative at Westinghouse's plant in Trafford, Pennsylvania, to conduct a health hazard evaluation to determine if employees were suffering allergic reactions from the work environment. NIOSH's investigation disclosed that hexahydrophthalic anhydride (HHPA) was being used in significant quantities. The NIOSH investigators [*68] suspected that HHPA might be causing allergic reactions in some employees. They thus recommended that environmental and medical testing of the employees be done. The company's medical records were also requested.
Prior to the health hazard evaluation in the Westinghouse Electric Corp. case, the potential of HHPA to induce asthmatic conditions through prolonged exposure was unknown. Westinghouse's medical records were, therefore, needed to provide as complete a sampling as possible and to permit comparison of NIOSH's medical examinations with examinations of the employees before they entered the affected area. The court, in ordering the records disclosed, noted that NIOSH's investigation would be "unduly hampered" without the medical records requested.
In E.I. duPont deNemours & Co. and General Motors Corp., NIOSH was requested by union representatives to investigate the workplace of each employer. In the former case NIOSH was requested to determine whether any substance at duPont's plant had potentially toxic effects; in the latter case NIOSH was to determine the cause of certain skin diseases incident among workers at the General Motors' plant. Dr. John Finklea, [*69] Director of NIOSH, explained why the medical records were vitally important to the performance of NIOSH's health hazard evaluation in the E. I. duPont case, but his explanation is equally applicable to other such evaluations.
The procedures for identifying causal factors in industrial disease differ. . . . The disease process in cancer is lengthy, often approaching decades between exposure and diagnosis or death. Because of this difference, medical examinations of the current work force alone for possible cancers is inadequate for the research investigation at the Belle plant. . . . To study the cancer incidence and evaluate the cancer risk in the workplace, it is first necessary to reconstruct as complete a list as possible for each individual who is or has been employed at Belle. . . . Towards these ends, all employment and medical records of current and forme. Belle employees are relevant and necessary. [emphasis added].
E.I. duPont deNemours Co. v. Finklea, 422 F. Supp. at 823.
In contrast to the NIOSH cases, the medical records the Secretary seeks here are not essential to his case. While a compelling need existed for disclosure of the medical records in [*70] the NIOSH cases, the medical records here are not needed by the Secretary to establish his case. n6
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n6 In Whalen v. Roe, supra, the Supreme Court declared that the State's vital interest in controlling the distribution of dangerous drugs supports the State's decision to utilize a patient-identification requirement for certain prescription drugs. The Court further reasoned that broad latitude should be given the State in the exercise of its police powers. This case does not involve a state's police powers; additionally medical records, rather than a patient-identifical requirement, are at issue here. This case is, therefore, distinguishable from Whalen v. Roe.
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Until this case came before the Commission, the Secretary asserted only one basis for needing the medical records. At the hearing before the administrative law judge to determine whether the medical records should be disclosed, the Secretary indicated that he needed the medical records solely to counter WPP's defenses that the Secretary's sampling [*71] methodology was unreliable and that WPP's medical surveillance and personal protective programs adequately protected its employees. Although the Secretary might have claimed that he needed the records to establish his prima facie case, he did not do so. Rather the Secretary sought the records as rebuttal to WPP's case. WPP, however, insists that the Secretary was in error and has misconstrued the nature of its defense. WPP also asserts that it will not rely on any information contained in the medical records in presenting its defense. At this point, therefore, it is entirely speculative whether the Secretary needs the records to rebut any of WPP's defenses. n7
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n7 If at the hearing following presention of WPP's evidence, the Secretary still believes he needs the medical records for rebuttal, the judge should weigh the interest of the Secretary in obtaining the medical records against the privacy rights of the employees. Assuming arguendo that the Secretary's interest in obtaining the records outweighs the employees' right to privacy and that disclosure is appropriate, the Secretary could be granted a continuance to study the medical records. This procedure would assure that the medical records would not be disclosed needlessly.
[*72]
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In any event, as my colleagues note, the medical records would neither prove nor disprove the reliability of the Secretary's sampling methodology and, therefore, are not needed for this purpose. Moreover, to the extent that the medical records are relevant to whether WPP provided appropriate respirators for its employees, the records are not needed. In a recent Commission decision, Anaconda Aluminum Co., No. 13102 (March 31, 1981), the Commission held that it would generally evaluate the appropriateness of respirators based upon the protection factors n8 associated with the respirators. Accordingly, the most direct and desirable means of establishing the appropriateness of WPP's respirators would be through evidence concerning the protection factors of the respiratiors. Any evidence concerning the medical records would be secondary to and cumulative of this primary approach.
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n8 The protection factor is defined as the ratio of the outside or ambient concentration of the air contaminant to the concentration in the employee's breathing zone when the respirator is worn properly.
[*73]
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The Secretary's other argument for needing the medical records -- that they are relevant to the extent and seriousness of the alleged violations -- was raised only at the last minute in his reply brief to the Commission. This delay by the Secretary casts doubt on whether the Secretary himself even believes the records are needed for establishing the extent and seriousness of the violations.
Moreover, in Anaconda Aluminum, supra, the Commission overruled its prior decisions in which it held that the Secretary is required to prove the degree of exposure to a contaminant that would lead to a serious disease in order to prove a serious violation of the Act and held instead that if the standard is intended to protect against a life threatening disease, the violation is serious. Under prior precedent it may have been helpful to the Secretary to obtain employee medical records. Under the current precedent, however, the Secretary's burden is less stringent and consequently the need for the records greatly diminished.
In Anaconda Aluminum, the Commission ruled that the violation was serious because [*74] the cited standard in that case was intended to protect employees against cancer. As Commissioner Cleary notes, the Secretary could utilize a similar approach here. In any event, the Secretary could utilize the testimony of medical doctors and other experts in the field to establish the gravity and type of violation.
It is clear, therefore, that, contrary to Commissioner Cottine's assertion, the medical records are neither "critically important" nor "comparable to the disclosures required in Whalen, duPont and Westinghouse". Moreover, Commissioner Cleary's assertion that "the Secretary's need for use of the records is valid," is beside the point. The initial inquiry involves the degree to which the records are needed. Here that need is minimal, at best. The Secretary has failed to show that the remedial purposes of the Act would be disserved by failure to disclose the records and has not articulated any compelling reason militating toward disclosure.
The employees' interest, on the other hand, in maintaining the privacy of their medical records is compelling. Both of the interests identified by the Court in Whalen v. Roe, supra, are implicated here. First, [*75] the medical records may well contain information which is sensitive, embarrassing or otherwise so personal in nature that the employees have a strong interest in keeping it private. Secondly, the disclosure of the medical records is likely to deter employees from seeking assistance from WPP's medical personnel and from providing candid information to such personnel. Additionally, it is likely to make the employees reluctant to take part in medical tests that WPP wishes or is required to conduct. Finally, the disclosure of the employee medical records to the government further adds to the "threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files." Whalen v. Roe, 429 U.S. at 605. Thus, the employees' interest in maintaining the privacy of their medical records is strong and grounded on several bases.
Neither deletion of the employee names nor the protective order the majority enters is sufficient to protect this interest. I do not agree with Commissioner Cleary that the possibility is remote that the individuals whose medical records are disclosed could be identified. The records contain [*76] the age, sex, height, weight, and race of each employee. Therefore, even though the names, addresses, and Social Security numbers of the employees are deleted, in all likelihood it still would be possible to link the records to the individuals. Finally, the protective order does not eliminate the possibility that the contents of the medical records will be revealed to persons unconnected to this case or who otherwise have no valid reason to see them. The effectiveness of the protective order depends on the individuals against whom it runs obeying it and not revealing the medical records either intentionally or inadvertently. The Commission lacks the power to punish by contempt of court breaches of its orders. Du Ponte Light Co., 80 OSAHRC 32/B7, 8 BNA OSHC 1218, 1980 CCH OSHD P24,384 (No. 78-5034, 1980) (dissenting opinion); Owens-Illinois, Inc., 78 OSAHRC 105/C8, 6 BNA OSHC 2162, 2167 n.11, 1978 CCH OSHD P23,218 at 28,074 n.11 (No. 77-648, 1978). Therefore, the efficacy of the protective order is questionable. Owens-Illinois, Inc., supra (dissenting opinion). I would not entrust the security of matters as sensitive as medical records to the limited protection [*77] afforded by the protective order entered in this case, particularly in view of the absence of need for the medical records for the litigation of this case.
Accordingly, in weighing the competing interests involved in this matter, I conclude that the Secretary has failed to establish sufficient need to outweigh the privacy interests of the WPP employees in their medical records. I, therefore, would vacate the judge's order requiring the disclosure of the records and hold that the records shall not be disclosed.
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n9 I would affirm the judge's ruling denying the Secretary's motion to compel discovery as to request for production no. 9, which sought profit and loss statements of WPP's Lindale mill since those profit and loss statements are not relevant to this proceeding. To the extent that the financial situation of an employer is relevant to the standards at issue here, I would limit the inquiry to the employer's overall financial situation.
The Commission has not addressed the question of economic feasibility as it relates to the air contaminant standard at issue here, 29 C.F.R. § 1910.1000. In Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. April 26, 1977), I stated that only controls which are economically feasible in terms of the costs which must be incurred and the benefits they will achieve are required to be implemented under the noise standard. I noted, however, that violations relating to excessive exposure to noise are distinguishable from life threatening hazards. Assuming that economic feasibility must be established and that the costs of controls must be justified by the benefits they produce, it need not be shown that the employer can afford the costs of the controls. Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1522 n.13, 1980 CCH OSHD P24,555, at 30,045 n.13 (No. 76-222, 1980). However, if economic feasibility is based upon financial viability, the financial condition of WPP as a whole, rather than a single mill, should be considered. Additionally the financial condition of WPP as a whole is relevant to the setting of an appropriate abatement date. Sampson Paper Bag Co., 8 BNA OSHC 1515, 1521 n.12, 1980 CCH OSHD P24,555 at 30,045 n.12.
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