“SECRETARY OF LABOR,Complainant,v.A. B. CHANCE COMPANY,Respondent.OSHRC DOCKET NO. 84-519_ORDER_No response having been received from the Secretary, in accordance withthe Commission decision issued March 18, 1987, this case is a finalorder as of the date of this order.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated: APR 6 1987 FOOTNOTES:[[1]]A.B. Chance, the petitioning party in this case, did not file abrief on review or otherwise respond to our briefing notice. At the timewe issued the briefing notice, our Rules of Procedure provided that:If a petitioning party fails to respond to a briefing notice orexpresses no interest in review, the Commission may vacate the directionfor review, or it may decide the case without that party’s brief.29 C.F.R. ? 2200.93(d) (1985). In the usual case where a petitioningparty failed to respond to our briefing notice, we would vacate ourdirection for review. E.g., D.A. & S. Oil Well Servicing, Inc., 13 BNAOSHC, 1987 CCH OSHD (P) (No. 85-604, 1987). However, inasmuch as we havealready ruled on the issue in Kings Island, we exercise our discretionto decide the case despite A.B. Chance’s failure to participate in thesereview proceedings. We express our strong disapproval of counsel’sfailure to provide analysis of the very significant constitutional issuethat A.B. Chance asked us to review.[[2]]Our decision in Kings Island was based in part on documents that wetook official notice of under section 7(d) of the AdministrativeProcedure Act, 5 U.S.C. ? 556(e). Slip op. at p. 11 n.6. We accordinglyafforded the Secretary an opportunity in Kings Island to introduceevidence contrary to those officially-noticed documents. We afford theSecretary the same opportunity in this case.Each employer shall provide, upon request. records provided for in ??1904.2, 1904.4, and 1904.5, for inspection and copying by anyrepresentative of the Secretary of Labor for the purpose of carrying outthe provision of the act. and by representatives of the Secretary ofHealth, Education, and Welfare during any investigation under section20(b) of the act, or by any representative of a State accordedjurisdiction for occupational safety and health inspections or forstatistical compilation under section 18 and 24 of the act.[[1\/]] Section 1904.7(a) of 29 C.F.R. states as follows:Section 1904.2(a) of 29 C.F.R. provides as follows:Each employer shall, expect as provided in paragraph (b) of this section, (1) maintain in each establishment a log and summary of all recordoccupational injuries and illness for that establishment; and (2) entereach recordable injury no later than 6 working days after receivinginformation that a recordable injury or illness has occurred. For thispurpose form OSHA No. 200 or an equivalent which is as readable andcomprehensible to a person not familiar with it shall be completed indetail provided in the form and instructions on form OSHA No. 200.Section 1904.4 of 29 C.F.R. provides as follows:In addition to the log of occupational injuries and illnesses providedfor under ?1904.2, each employer shall have available for inspection ateach establishment within 6 working days after receiving informationthat a recordable case has occurred, a supplementary record for eachoccupational injury or illness for that establishment. The recordshall be completed in the detail prescribed in the instructionsaccompanying Occupational Safety and Health Administration For, OSHA No.101. Workmen’s compensation, insurance, or other reports areacceptable alternative record is maintained for other purposes, FormOSHA No. 101 shall be used or the necessary information shall beotherwise maintained.[[2\/]] A concise statement of the legal theory relied upon by theSecretary is found in Cooper’s Express, Inc. v. ICC, 330 F.2d 338, 340(1st Cir. 1964) which states as follows:It is well settled that Congress may require a corporation engaged in abusiness subject to federal regulations to keep certain records and makethem available for official inspection in order to provide for effectiveadministration and enforcement. Shapiro v. United States 335, U.S. 1, 68S.Ct. 1375, 92 L.Ed. 1781 (1948); United States v. Darby, 312 U.S. 100,61 S.Ct. 451, 85 L.Ed. 609 (1941) ; Wilson v. United States, 221 U.S.361, 31 S.Ct. 538, 55 L.Ed. 771 (1911); Balt. Ohio R.R. v. Int. Com.Comm., 221 U.S. 712, 31 S.Ct. 621, 55 L.Ed. 873 (1911). Such recordsassume the characteristic of quasi-public documents and their disclosuremay be compelled without violating the Fourth Amendment. Bowles v. GlickBros. Lumber Co., 146 F.2d 566 (9th Cir.), cert denied, 326 U.S. 804, 66S.Ct. 12, 90 L.Ed. 490 (1945); Rodgers v. United States, 138 F.2d 997(6th Cir. 1943); United States v. Pine Valley Poultry DistributorsCorp., 187 F.Supp. 455 (S.D. N.Y. 1960). In Boyd v. United States, 116U.S. 616, 624, 6 S.Ct. 524, 528, 29 L.Ed. 746 (1886) the Supreme Courtrecognized that books required to be kept by manufacturers forinspection by revenue officers \”are necessarily excepted out of thecategory of unreasonable searches and seizures.\” And in Hale v. Henkel,201 U.S. 43, 77, 26 S.Ct. 370, 380, 50 L.Ed. 652 (1906), the Court,although finding an order for the production of certain corporate booksand papers too broad and indefinite, stated: \”Of course, in view of thepower of Congress over interstate commerce, to which we have adverted,we do not wish to be understood as holding that an examination of thebooks of a corporation, if duly authorized by act of Congress, wouldconstitute an unreasonable search and seizure within the 4th Amendment.\”————————————————————————SECRETARY OF LABOR,Complainant,v.A.B. CHANCE COMPANY,Respondent.OSHRC Docket No. 84-0519_DECISION_Before: BUCKLEY, Chairman, and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. 659(c).At issue is a single citation alleging a violation of 29 C.F.R. ?1904.7. That regulation states that employers \”shall provide\” certaininjury and illness records \”upon request\” to \”any representative\” of theSecretary \”for inspection and copying.\” See section 1.904.7(a). Therecords that must be provided for inspection and copying include thosethat the employer is required to maintain on form OSHA No. 200, the logand summary of occupational injuries and illnesses, and on form OSHA No.101, the supplementary record of occupational injuries and illnesses.See sections 1904.2(a) and 1904.4.The facts are not in dispute. An OSHA compliance officer arrived at A.B.Chance’s workplace to conduct an inspection in response to an employeecomplaint. The compliance officer requested permission to examine thecompany’s OSHA forms, No. 101 and No. 200, and to inspect the workplace\”to look at the complaint items.\” A.B. Chance’s representativesconsented to a warrantless inspection of the workplace limited to thecomplaint items, but refused to allow the access to injury recordsrequired by section 1904.7 unless OSHA obtained a warrant. OSHA neitherobtained an inspection warrant nor issued an administrative subpena.Instead, it issued the citation now on review.The case was submitted to Commission Administrative Law Judge Joe D.Sparks on a stipulated record. The only issue before the judge waswhether the Fourth Amendment requires OSHA to obtain a warrant or issuea subpena when it wishes to examine required injury records. JudgeSparks answered this question in the negative and therefore affirmed thecitation. We reverse.In Kings Island, Division of Taft Broadcasting Co., OSHRC Docket No.82-1016 (March 18, 1987), we held that \”section 1904.7(a) violates theFourth Amendment to the extent that it purports to authorize aninspection of required records without a warrant or its equivalent’. . ..\” Slip op. at p. 24. Here, as in Kinqs Island, OSHA neither obtained aninspection warrant nor issued an administrative subpena compellingproduction of the injury records. For the reasons stated in KingsIsland, we vacate citation 1 unless the Secretary requests anopportunity to introduce evidence contrary to officially-noticeddocuments within 15 days of this decision.[[2]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATE: MAR 18, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.A. B. CHANCE COMPANY,Respondent.OSHRC Docket No. 84-0519APPEARANCES:James E. Culp, Esquire, Office of the Solicitor, U. S.Department of Labor, Philadelphia, Pennsylvania, on behalfof complainant.William T. Weidle, Jr., Esquire, St. Louis, Missouri, onbehalf of respondent._DECISION AND ORDER_SPARKS, Judge: The issue in this case is whether the respondent, A.B.Chance Company, must, upon request by an OSHA compliance officer,produce for inspection and copying the OSHA forms 101 and 200.Respondent refused to produce the documents without being served with asearch warrant. the Secretary contended a search warrant was notrequired for such records and on May 14, 1984, issued a citation for an1904.7.[[1\/]]The facts have been stipulated by the parties and are adopted asfindings of fact._FINDINGS OF FACT_1. The Charleston Area Office received a document on March 1984, whichis attached hereto in sanitized form and made a part hereof byreference, regarding the ceramic, electrical insulator facility of A.B.Chance Company at Camden Avenues, Parkersburg, West Virginia. [MarkedExhibit \”A\”]2. As a result of that employee complaint, OSHA Compliance OfficerBouglas Ray arrived at the A. B. Chance facility to conduct aninspection on April 9, 1984.3 A. B. Chance Company’s designated representative at that time was LyleDeem, a general foreman.4. The union representative was Lawrence Flowers.5. At the opening conference, Compliance Officer Ray requested that hebe permitted to look at the OSHA Forms 101’s and 200’s which the Companymaintained and to look at the complaint items.6. Mr. Deem indicated that he did rot know where the OSHA Forms 100 and200 were kept and that the person who had authority to release thosedocuments, Stephen Bailey, Personnel Manager, was not available.7. After consultation with corporate headquarters, Mr. Deem refused tofurther permit a warrantless inspection unless and to the extent thatCompliance Officer Ray agreed to confine the inspection scope to thecomplaint items and photographs thereof.8. Compliance Officer Ray thereafter conducted an inspection of theComplaint items accompanied by Mr. Deem and Mr. Flowers.9. Following the inspection, Compliance Officer Ray conducted a closingconference.10. At the closing conference, Compliance Officer Ray informed Mr. Deemthat, while he had found no apparent OSHA violations, he would stillneed to examine the OSHA Forms 101’s and 200’s to complete the inspection.11. Mr. Deem again informed him that he must contact Mr. Bailey.12.On Apr. 16, 1984 , Compliance Officer Ray telephoned Mr. Baileyrequesting that he be permitted, to examine the OSHA 101′ s and 200 ‘ s.13. On April, 16, 1984, Mr. Bailey informed Compliance Officer Ray that,pursuant to corporate policy, he could not disclose the requestedinformation without a warrant.14. On May 3 1984, Compliance Officer Ray telephoned Mr. Baileyinforming him of the alleged violation for not making the recordsavailable..15. Neither the. compliance officer nor, any other OSHA representativesought or obtained a warrant or subpoena to examine the OSHA 101’s or 200’s.16. If a violation should be found, the parties agree that it isappropriately characterized as other than serious and that $0 is theappropriate penalty in light of the statutory factors._DISCUSSION_The Secretary contends that records required to be kept by law must beproduced upon request without the necessity of a search warrant. 2\/Respondent relies upon Marshall v. Barlow’s. Inc., 436 U. S. 307 (1978),which held that an OSHA inspection must be conducted by consent or asearch warrant. Here respondent consented to an inspection of the itemsinvolved in the employee complaint but refused to produce the OSHA forms101 and 200.The Supreme Court dealt with the issue of whether records must beproduced without a warrant in a footnote to the Barlow’s decision asfollows:22. Delineating the scope of a search with some care is particularlyimportant where documents are involved. Section 8(c) of the Act, 29U.S.C. ? 657(c), provides that an employer must \”make, keep andpreserve, and make available to the Secretary [of Labor] or theSecretary of Health, Education and Welfare\” such records regarding hisactivities relating to OSHA as the Secretary of Labor may prescribe byregulation as necessary or appropriate for enforcement of the statute orfor developing information regarding the causes and prevention ofoccupational accidents and illnesses. Regulations requiring employers tomaintain records of and to make periodic reports on \”work-related death,injuries and illnesses\” are also contemplated, as are rules requiringaccurate records of employee exposures to potential toxic materials andharmful physical agents.In describing the scope of the warrantless inspection authorized by thestatute ? 8(a) does not expressly include any records among those itemsor things that may be examined, and ? 3(c) merely provides that theemployer is to \”make available\” his pertinent records and to makeperiodic reports.The Secretary’s regulation, 29 CFR ? 1903.3 (1977), however, expresslyincludes among the inspector’s powers the authority \”to review recordsrequired by the Act and regulations published in this chapter, and otherrecords which are directly related to the purpose of the inspection.\”Further, ? 1903.7 requires inspectors to indicate generally \”the recordsspecified in ? 1903.3 which they wish to review\” but \”such designationsof records shall not preclude access to additional records specified in? 1903.3.\” It is the Secretary’s position which reject we reject, thatan inspection of documents of this scope may be effected without a warrant.The order that issued in this case included among the objects and thingsto be inspected \”all other things therein (including but not limited torecords, files, papers, processes, controls and facilities) bearing uponwhether Barlow’s Inc. is furnishing to its employees employment and aplace of employment that are free from recognized hazards that arecausing or are likely to cause death or serious physical harm to itsemployees, and whether Barlow’s, Inc. is complying with . . .\” the OSHAregulations. (Emphasis supplied.)The Court rejected the broad assertion of the Secretary that all recordsdescribed in the regulations must be produced without a warrant. But theCourt’s languagethat the inspection of documents \”of this scope\” was invalid clearlyimplies that records more limited in scope may pass the Constitutional test.To ascertain whether the OSHA 101 and 200 forms are within a group ofdocuments, limited in scope, which must be made available upon request,we look first tosee the interpretive touchstone of the fourth amendment. The legalstandard to be applied was recently stated by the Supreme Court inOliver v. United States, ____ U.S. ____, 104 S. Ct. 1735, 1737 (April17, 1984), as follows:Since Katz v. United States, 389 U.S. 347 (1967), the touchstone ofAmendment analysis has been the question whether a person has a\”Constitutionally protected reasonable expectation of privacy.\” 389U.S., at 360 (Harlan, J., concurring). The Amendment does not protectthe merely subjective expectation of privacy, but only \”thoseexpectations that society is prepared to recognize as \”reasonable.\” Id.,at 364.There the Court reaffirmed its holding that \”open fields\” are notprotected by the fourth amendment.Applying that principle to the instant case, it is noted that the OSHAforms 101 and 200 are kept entirely to fulfill the mandate ofregulations issued pursuant to the Occupational Safety and Health Act.They are not general business records. Therefore,it is difficult toenvision any expectation of privacy which could attach to suchrecords.Neither is there a societal interest to be served by protectingthem from disclosure or by requiring a warrant for their production. SeeOliver v. United States, supra; Hale v. Henkel, 201 U.S. 43, 26 S. Ct.37(1906)._CONCLUSIONS OF LAW_1. Respondent had no reasonable expectation of privacy of OSHA forms 101and 200.2. Respondent violating 29 C.F.R. ? 1904.7 by refusing to make OSHAforms 101 and 200 available for inspection and copying._ORDER_1. The other than serious citation issued April 14, 1984, is affirmed.2. No penalty is assessed.Dated this 30th day of January, 1985JOE D. SPARKSJudge————————————————————————“