“Docket No. 84-0519 SECRETARY OF LABOR,Complainant, v.A. B. CHANCE COMPANY, Respondent.OSHRC DOCKET NO. 84-519ORDERNo response having been received from the Secretary, in accordance with the Commissiondecision issued March 18, 1987, this case is a final order as of the date of this order.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated: APR 6 1987\u00a0FOOTNOTES: [[1]]A.B. Chance, the petitioning party in this case, did not file a brief on review orotherwise respond to our briefing notice. At the time we issued the briefing notice, ourRules of Procedure provided that:If a petitioning party fails to respond to a briefing notice or expresses no interest inreview, the Commission may vacate the direction for review, or it may decide the casewithout that party’s brief.29 C.F.R. ? 2200.93(d) (1985). In the usual case where a petitioning party failed torespond to our briefing notice, we would vacate our direction for review. E.g., D.A. &S. Oil Well Servicing, Inc., 13 BNA OSHC, 1987 CCH OSHD (P) (No. 85-604, 1987). However,inasmuch as we have already ruled on the issue in Kings Island, we exercise our discretionto decide the case despite A.B. Chance’s failure to participate in these reviewproceedings. We express our strong disapproval of counsel’s failure to provide analysis ofthe very significant constitutional issue that A.B. Chance asked us to review.[[2]]Our decision in Kings Island was based in part on documents that we took officialnotice of under section 7(d) of the Administrative Procedure Act, 5 U.S.C. ? 556(e). Slipop. at p. 11 n.6. We accordingly afforded the Secretary an opportunity in Kings Island tointroduce evidence contrary to those officially-noticed documents. We afford the Secretarythe 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 any representative of the Secretary of Labor forthe purpose of carrying out the provision of the act. and by representatives of theSecretary of Health, Education, and Welfare during any investigation under section 20(b)of the act, or by any representative of a State accorded jurisdiction for occupationalsafety and health inspections or for statistical compilation under section 18 and 24 ofthe 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 ineach establishment a log and summary of all record occupational injuries and illness forthat establishment; and (2) enter each recordable injury no later than 6 working daysafter receiving information that a recordable injury or illness has occurred.\u00a0 Forthis purpose form OSHA No. 200 or an equivalent which is as readable and comprehensible toa person not familiar with it shall be completed in detail provided in the form andinstructions 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 provided for under?1904.2, each employer shall have available for inspection at each establishment within 6working days after receiving information that a recordable case has occurred, asupplementary record for each occupational injury or illness for that establishment.\u00a0 The record shall be completed in the detail prescribed in the instructionsaccompanying Occupational Safety and Health Administration For, OSHA No. 101.\u00a0 Workmen’s compensation, insurance, or other reports are acceptable alternativerecord is maintained for other purposes, Form OSHA No. 101 shall be used or the necessaryinformation shall be otherwise maintained.[[2\/]] A concise statement of the legal theory relied upon by the Secretary is found inCooper’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 a businesssubject to federal regulations to keep certain records and make them available forofficial inspection in order to provide for effective administration and enforcement.Shapiro v. United States 335, U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1781 (1948); United Statesv. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941) ; Wilson v. United States, 221U.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 records assume the characteristic ofquasi-public documents and their disclosure may be compelled without violating the FourthAmendment. Bowles v. Glick Bros. Lumber Co., 146 F.2d 566 (9th Cir.), cert denied, 326U.S. 804, 66 S.Ct. 12, 90 L.Ed. 490 (1945); Rodgers v. United States, 138 F.2d 997 (6thCir. 1943); United States v. Pine Valley Poultry Distributors Corp., 187 F.Supp. 455 (S.D.N.Y. 1960). In Boyd v. United States, 116 U.S. 616, 624, 6 S.Ct. 524, 528, 29 L.Ed. 746(1886) the Supreme Court recognized that books required to be kept by manufacturers forinspection by revenue officers \”are necessarily excepted out of the category ofunreasonable 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 ofcertain corporate books and papers too broad and indefinite, stated: \”Of course, inview of the power of Congress over interstate commerce, to which we have adverted, we donot wish to be understood as holding that an examination of the books of a corporation, ifduly authorized by act of Congress, would constitute an unreasonable search and seizurewithin the 4th Amendment.\” SECRETARY OF LABOR, Complainant, v.A.B. CHANCE COMPANY, Respondent.OSHRC Docket No. 84-0519DECISION Before: BUCKLEY, Chairman, and WALL, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”). The Commission is an adjudicatory agency, independent ofthe Department of Labor and the Occupational Safety and Health Administration(\”OSHA\”). It was established to resolve disputes arising out of enforcementactions brought by the Secretary of Labor under the Act and has no regulatory functions.See section 10(c) of the Act, 29 U.S.C. 659(c).At issue is a single citation alleging a violation of 29 C.F.R. ? 1904.7. That regulationstates that employers \”shall provide\” certain injury and illness records\”upon request\” to \”any representative\” of the Secretary \”forinspection and copying.\” See section 1.904.7(a). The records that must be providedfor inspection and copying include those that the employer is required to maintain on formOSHA No. 200, the log and summary of occupational injuries and illnesses, and on form OSHANo. 101, the supplementary record of occupational injuries and illnesses. See sections1904.2(a) and 1904.4.The facts are not in dispute. An OSHA compliance officer arrived at A.B. Chance’sworkplace to conduct an inspection in response to an employee complaint. The complianceofficer requested permission to examine the company’s OSHA forms, No. 101 and No. 200, andto inspect the workplace \”to look at the complaint items.\” A.B. Chance’srepresentatives consented to a warrantless inspection of the workplace limited to thecomplaint items, but refused to allow the access to injury records required by section1904.7 unless OSHA obtained a warrant. OSHA neither obtained an inspection warrant norissued an administrative subpena. Instead, it issued the citation now on review.The case was submitted to Commission Administrative Law Judge Joe D. Sparks on astipulated record. The only issue before the judge was whether the Fourth Amendmentrequires OSHA to obtain a warrant or issue a subpena when it wishes to examine requiredinjury records. Judge Sparks answered this question in the negative and therefore affirmedthe citation. 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 the Fourth Amendment to the extentthat it purports to authorize an inspection of required records without a warrant or itsequivalent’. . . .\” Slip op. at p. 24. Here, as in Kinqs Island, OSHA neitherobtained an inspection warrant nor issued an administrative subpena compelling productionof the injury records. For the reasons stated in Kings Island, we vacate citation 1unless the Secretary requests an opportunity to introduce evidence contrary toofficially-noticed documents within 15 days of this decision.[[2]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATE: MAR 18, 1987SECRETARY 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 behalf of complainant.William T. Weidle, Jr., Esquire, St. Louis, Missouri, onbehalf of respondent.DECISION AND ORDERSPARKS, 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 theOSHA forms 101 and 200. Respondent refused to produce the documents without being servedwith a search warrant. the Secretary contended a search warrant was not required for suchrecords and on May 14, 1984, issued a citation for an 1904.7.[[1\/]]The facts have been stipulated by the parties and are adopted as findings of fact.FINDINGS OF FACT1. The Charleston Area Office received a document on March 1984, which is attached heretoin sanitized form and made a part hereof by reference, regarding the ceramic, electricalinsulator facility of A.B. Chance Company at Camden Avenues, Parkersburg, West Virginia.[Marked Exhibit \”A\”]2. As a result of that employee complaint, OSHA Compliance Officer Bouglas Ray arrived atthe A. B. Chance facility to conduct an inspection on April 9, 1984.3 A. B. Chance Company’s designated representative at that time was Lyle Deem, a generalforeman.4. The union representative was Lawrence Flowers.5. At the opening conference, Compliance Officer Ray requested that he be permitted tolook at the OSHA Forms 101’s and 200’s which the Company maintained and to look at thecomplaint items.6. Mr. Deem indicated that he did rot know where the OSHA Forms 100 and 200 were kept andthat the person who had authority to release those documents, Stephen Bailey, PersonnelManager, was not available.7. After consultation with corporate headquarters, Mr. Deem refused to further permit awarrantless inspection unless and to the extent that Compliance Officer Ray agreed toconfine the inspection scope to the complaint items and photographs thereof.8. Compliance Officer Ray thereafter conducted an inspection of the Complaint itemsaccompanied by Mr. Deem and Mr. Flowers.9. Following the inspection, Compliance Officer Ray conducted a closing conference. 10. At the closing conference, Compliance Officer Ray informed Mr. Deem that, while he hadfound no apparent OSHA violations, he would still need to examine the OSHA Forms 101’s and200’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. Bailey requesting that he bepermitted, to examine the OSHA 101′ s and 200 ‘ s.13. On April, 16, 1984, Mr. Bailey informed Compliance Officer Ray that, pursuant tocorporate policy, he could not disclose the requested information without a warrant.14. On May 3 1984, Compliance Officer Ray telephoned Mr. Bailey informing him of thealleged violation for not making the records available..15. Neither the. compliance officer nor, any other OSHA representative sought or obtaineda warrant or subpoena to examine the OSHA 101’s or 200’s.16. If a violation should be found, the parties agree that it is appropriatelycharacterized as other than serious and that $0 is the appropriate penalty in light of thestatutory factors.DISCUSSION The Secretary contends that records required to be kept by law must be produced uponrequest without the necessity of a search warrant. 2\/Respondent relies upon Marshall v. Barlow’s. Inc., 436 U. S. 307 (1978), which held thatan OSHA inspection must be conducted by consent or a search warrant. Here respondentconsented to an inspection of the items involved in the employee complaint but refused toproduce the OSHA forms 101 and 200. The Supreme Court dealt with the issue of whether records must be produced without awarrant in a footnote to the Barlow’s decision as follows:22. Delineating the scope of a search with some care is particularly important wheredocuments are involved. Section 8(c) of the Act, 29 U.S.C. ? 657(c), provides that anemployer must \”make, keep and preserve, and make available to the Secretary [ofLabor] or the Secretary of Health, Education and Welfare\” such records regarding hisactivities relating to OSHA as the Secretary of Labor may prescribe by regulation asnecessary or appropriate for enforcement of the statute or for developing informationregarding the causes and prevention of occupational accidents and illnesses. Regulationsrequiring employers to maintain records of and to make periodic reports on\”work-related death, injuries and illnesses\” are also contemplated, as are rulesrequiring accurate records of employee exposures to potential toxic materials and harmfulphysical agents.In describing the scope of the warrantless inspection authorized by the statute ? 8(a)does not expressly include any records among those items or things that may be examined,and ? 3(c) merely provides that the employer is to \”make available\” hispertinent records and to make periodic reports. The Secretary’s regulation, 29 CFR ? 1903.3 (1977), however, expressly includes among theinspector’s powers the authority \”to review records required by the Act andregulations published in this chapter, and other records which are directly related to thepurpose of the inspection.\” Further, ? 1903.7 requires inspectors to indicategenerally \”the records specified in ? 1903.3 which they wish to review\” but\”such designations of records shall not preclude access to additional recordsspecified 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 things to be inspected\”all other things therein (including but not limited to records, files, papers,processes, controls and facilities) bearing upon whether Barlow’s Inc. is furnishing toits employees employment and a place of employment that are free from recognized hazardsthat are causing or are likely to cause death or serious physical harm to its employees,and whether Barlow’s, Inc. is complying with . . .\” the OSHA regulations. (Emphasissupplied.)The Court rejected the broad assertion of the Secretary that all records described in theregulations must be produced without a warrant. But the Court’s language that the inspection of documents \”of this scope\” was invalid clearly impliesthat records more limited in scope may pass the Constitutional test.To ascertain whether the OSHA 101 and 200 forms are within a group of documents, limitedin scope, which must be made available upon request, we look first to see the interpretive touchstone of the fourth amendment. The legal standard to be appliedwas recently stated by the Supreme Court in Oliver v. United States, ____ U.S. ____, 104S. Ct.\u00a0 1735, 1737 (April 17, 1984), as follows:Since Katz v. United States, 389 U.S. 347 (1967), the touchstone of Amendment analysis hasbeen the question whether a person has a \”Constitutionally protected reasonableexpectation of privacy.\” 389 U.S., at 360 (Harlan, J., concurring). The Amendmentdoes not protect the 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 not protected bythe fourth amendment.Applying that principle to the instant case, it is noted that the OSHA forms 101 and 200are kept entirely to fulfill the mandate of regulations issued pursuant to theOccupational Safety and Health Act. They are not general business records. Therefore,it isdifficult to envision any expectation of privacy which could attach to suchrecords.Neither is there a societal interest to be served by protecting them fromdisclosure or by requiring a warrant for their production. See Oliver v. United States,supra; Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 37(1906). CONCLUSIONS OF LAW1. Respondent had no reasonable expectation of privacy of OSHA forms 101 and 200.2. Respondent violating 29 C.F.R. ? 1904.7 by refusing to make OSHA forms 101 and 200available for inspection and copying.ORDER1. 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”