The legislative history is also instructive. According to the Joint Explanatory Statement included in the Conference Report of the Mine Act, with regard to section 103(h), “. . . the House amendment . . . authorized the Secretary to require records, reports, and other information not otherwise specified by the Act. The conference substitute conforms to the House amendment.” S. Rep. No. 95-461, at 47 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 1325 (1978). Thus in resolving issues regarding the scope of the Secretary’s authority to require records from operators, Congress chose the House approach, which broadly authorized the Secretary to obtain records and other information not otherwise specified by the Act. Significantly, Congress rejected earlier proposed versions of this section, which had limited the Secretary’s access to operators’ records to those specific records which the Secretary had “prescribe[d] by regulation.” S. 717, 95th Cong., at 20, reprinted in Leg. Hist. at 129; H.R. 4287, 95th Cong., at 20, reprinted in Leg. Hist. at 207.

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

Consequently, “[w]e must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate ‘expectation of privacy’ concerning their contents.” United States v. Miller, 425 U.S. 435, 442 (1976).

            In Donovan, the Supreme Court made clear that the mining industry is pervasively regulated and that warrantless nonconsensual mine inspections conducted by the Secretary under the Mine Act are fully consistent with the Fourth Amendment. 452 U.S. at 605. Because of this pervasive regulation, mine operators have an extremely low expectation of privacy with regard to their mines and records related to mine safety and health. This lowered expectation is reinforced by the language of section 103(h), which expressly states that “[i]n addition to such records as are specifically required by this chapter, every operator . . . shall . . . provide such information, as the Secretary . . . may reasonably require from time to time to enable [her] to perform [her] functions.” Additionally, in 30 C.F.R. § 50.41, the Secretary required each operator to allow MSHA to inspect and copy information related to accidents, injuries, or illnesses which are “relevant and necessary” for verifying investigation reports or determining compliance with reporting requirements. As a result of this pervasive regulation, mine operators are fully aware that the Secretary is authorized to require access to such information without obtaining an administrative search warrant.

            Moreover, while there are limits on the government’s authority in this area, they are well respected by MSHA’s narrowly focused, clearly explained, and limited request for information in this case. In BHP, the Commission “recognize[d], as did the Court in Donovan, that the bounds of the Secretary’s authority are not without limits,” but emphasized that “section 103 provides the ‘certainty and regularity of its application’ that is a substitute for a warrant.” 21 FMSHRC at 767, quoting 452 U.S. at 603. In BHP, we relied in particular on section 103(a) as a limit to the Secretary’s investigatory authority, and noted the Court’s statement in Donovan that “[t]he discretion of Government officials to determine what facilities to search and what violations to search for is . . . directly curtailed by the regulatory scheme.” Id., quoting 452 U.S. at 605. Of course, this “regulatory scheme” includes 30 C.F.R. § 50.41. As noted earlier, supra, at 14, we agree with the judge that this request is clearly distinguishable from the Sewell case, in that no inspector is seeking authority to rummage through the operators’ files. 33 FMSHRC at 1318. Accordingly, we conclude that the mine operators had no legitimate expectation of privacy with regard to the documents in question and that the Secretary’s actions comported with the Fourth Amendment.

            We disagree with the arguments of Commissioner Duffy, our dissenting colleague, who maintains that the Secretary’s audit violated the Fourth Amendment. Commissioner Duffy concedes that under Donovan the mining industry is pervasively regulated so that operators have a low expectation of privacy. Slip op. at 36. Nevertheless, citing United States v. Biswell, 406 U.S. 311 (1972), and Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), he contends that the Secretary can conduct warrantless searches for documents related to mine accidents, injuries, or illnesses only if those documents are “required to be generated and maintained by the enabling statute or regulations duly promulgated pursuant to that statute.” Slip op. at 32, 37. He further contends that the Secretary must undertake additional rulemaking to specifically identify the documents that she is entitled to have access to in order to carry out her functions under the Act. Id. at 41. He asserts that the term “may reasonably require from to time to time” in section 103(h) of the Mine Act must mean to require by means of a duly promulgated rule. Id.

            First, our colleague’s reliance on Biswell and Colonnade is misplaced. These cases involved statutes that explicitly limited the government’s inspection authority to records “required to be kept.” See Biswell, 406 U.S. 311; Colonnade Catering, 397 U.S. at 73 n.1. The Court did not address the question of the government’s inspection authority regarding records not legally required to be retained, and thus the cases do not stand for the proposition that a warrantless right of access is necessarily limited to records specifically required to be maintained by statute or regulation. Because the Mine Act grants the Secretary authority to inspect “records” and “information,” “[i]n addition to such records as are specifically required” to be kept, see 30 U.S.C. § 813(h) (emphasis added), Biswell and Colonnade are inapposite, as the statutory basis for the search here is broader than in the two cases decided by the Court.

            Furthermore, because reliance on these cases forms the foundation of his theory that a statutory or regulatory requirement that records be maintained is the only justification for an exception to the general warrant requirement, Commissioner Duffy’s argument that additional rulemaking is necessary in order to cure this alleged constitutional problem fails as well. Biswell and Colonnade do not support his contention that the language in section 103(h) that an operator must provide such information as the Secretary “may reasonably require from time to time” means information the Secretary “requires by means of a rule,” slip op. at 41. This is because, as we previously noted, in both Biswell and Colonnade, the information the government wished to acquire was already required to be maintained by statute, and the Court never explicitly stated that this was a prerequisite to the inspections at issue. In any event, courts generally have held that use of the phrase “from time to time” refers to discretionary actions of an agency, American Canoe Ass’n v. EPA, 30 F.Supp.2d 908, 923 (E.D.Va. 1998), citing Natural Res. Defense Council v. Thomas, 885 F.2d 1067, 1075 (2d Cir. 1989); Natural Res. Defense Council v. EPA, 770 F.Supp. 1093, 1105 (E.D.Va. 1991), aff’d, 16 F.3d 1395 (4th Cir. 1993), which would therefore not require a rule.

            Because the 1977 rulemaking directly addressed the Secretary’s authority and need to gain access to certain kinds of information not required to be generated or maintained under the statute, mine operators were clearly placed on notice that the Secretary could seek backup documents and other information “necessary and relevant” to verification and compliance determinations. Operators had no reasonable expectation of privacy with regard to that information. No additional rulemaking was necessary, and the Secretary’s audit did not violate the Fourth Amendment.

            The dissent’s reliance on Sixth Circuit case law in this area, slip op. at 38-39, is misplaced. Marshall v. Nolichuckey Sand, 606 F.2d 693 (6th Cir. 1979), was, as our colleague acknowledges, decided prior to the Supreme Court’s ruling in Donovan. Consequently, that court’s approval of warrantless inspections limited only to the “active workings” of coal mines, and its assertion that a warrant is required for the inspection of offices and other areas, was superceded by Donovan, which upheld warrantless inspections by MSHA with no such qualification. 452 U.S. at 606. The Donovan court relied on the broad authority provided by section 103(a) which requires “inspections of each underground coal or other mine in its entirety at least four times a year, and of each surface coal or other mine in its entirety at least two times a year.” 30 U.S.C. § 813(a) (emphasis added.).

            The Nolichuckey Sand court’s assertion was based on United States v. Consolidation Coal Co., 560 F.2d 214, 217 (6th Cir. 1977), vacated and remanded, 436 U.S. 942 (1978), judgment reinstated, 579 F.2d 1011 (1978) (“Consol”). Consol in turn relied on a district court decision, Youghiogheny and Ohio Coal Co. v. Morton, 364 F.Supp 45 (S.D. Ohio 1973). However, Youghiogheny never mentioned “active workings,” in upholding warrantless searches of coal mines. Id. at 52. In Judge Wiseman’s concurring opinion in United States v. Blue Diamond Coal Co., 667 F.2d 510, 521 (6th Cir. 1981), also relied on by our colleague, the court determined that suppression of certain records seized from the mine office was not appropriate, and noted that: “in light of Donovan and today’s decision, it is apparent that certain dicta in [Consol] no longer reflect[s] accurately the current state of the law.” Morever, even the Consol court acknowledged that the mine offices involved were “part of coal mine premises within the meaning of the Act,” and that it was “reasonable to assume that mine operators have a reduced expectation of privacy in their business offices than less highly scrutinized enterprises.” 560 F.2d at 219, 220.

            We also conclude that the miners do not have a reasonable expectation of privacy with regard to the documents sought by the Secretary in these audits. The Supreme Court in Miller held that a bank depositor had no protected Fourth Amendment interest in his bank records, such as checks and deposit slips, that were business records of the banks and not the depositor’s private papers. The Court’s decision stated unequivocally that:

This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

425 U.S. at 443. As in Miller, the records in this case are maintained by third parties (the mine operators) for their own business purposes and among their own business records.

            Miller emphasized that courts generally recognize that the Fourth Amendment does not prohibit the collection of information revealed to a third party and conveyed by him or her to government authorities. Id. Generally, following Miller, an individual only has a Fourth Amendment expectation of privacy in documents that he or she owns or possesses. This includes medical records demanded by the government. See, e.g., Young v. Murphy, 90 F.3d 1225, 1236 (7th Cir. 1996) (holding that patient failed to establish a Fourth Amendment claim to investigators’ examination of his nursing home records); Webb v. Goldstein, 117 F. Supp. 2d. 289, 295-96 (E.D.N.Y. 2000) (holding that parolee had no privacy interest in his prison medical records); Romano v. City of New York, 2009 WL 1941912 (E.D.N.Y. (2009)) (holding that plaintiff had no protected Fourth Amendment interest in his medical records allegedly seized at the office of his medical practitioner, as he could state no interest in the property seized at premises not under his control).

            Moreover, as the government agency responsible for protecting the health and safety of the nation’s miners, MSHA’s request for the miners’ medical records can hardly be described as an “inquiry that unnecessarily touch[es] upon intimate areas of [a miner’s] personal affairs,” as asserted by the dissent, slip op. at 44, citing Miller, 425 U.S. at 444 n.6 (emphasis added). See also Westinghouse, 638 F.2d at 580. This is particularly so when the records, limited to work-related injuries and illnesses, provide an accurate picture of the health and safety conditions the miners are subject to while in the mines. Accordingly, we conclude that the Secretary’s audit request does not violate the operators’ or intervenors’ Fourth Amendment rights.

            3.         Fifth Amendment arguments

            Intervenors further assert that the Secretary’s failure to fully consider the privacy issues when promulgating 30 C.F.R. § 50.41 was arbitrary and capricious and violates their Fifth Amendment right to due process.

            The Due Process Clause of the Fifth Amendment guarantees that no person shall “be deprived of life, liberty, or property, without due process of law.” The fundamental requirement of procedural due process is the opportunity to be heard “at a meaningful time and in a meaningful manner” appropriate to the nature of the case. Capital Cement Corp., 21 FMSHRC 883, 887 (1999) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)); Boddie v. Connecticut, 401 U.S. 371, 378 (1971); Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). The timing and manner of the hearing depend upon the “appropriate accommodation of the competing interests involved.” Id. (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982) (citations omitted)).

            We find the Intervenors’ due process argument unavailing. The general public, including miners, had the opportunity to challenge the promulgation of section 50.41 during the notice-and-comment proceeding over 30 years ago. The parties also retain the right, as they have done here, to challenge the Secretary’s application of the rule in each instance where it is applied. All parties involved in this proceeding, including Intervenors, have had a meaningful opportunity to protect their rights and interests by fully presenting their case before the Commission through oral argument and briefs. We find no violation of the right to due process protected by the Fifth Amendment.

D.Whether other federal statutes or state laws bar disclosure of the records and information.

            Petitioners state that the Secretary’s authority to require them to produce the disputed records is further limited by other federal and state statutes, including the Americans with Disabilities Act (“ADA”), the Family Medical Leave Act (“FMLA”), the Genetic Information Non-Discrimination Act of 2008 (“GINA”), the Illinois AIDS Confidentiality Act, and by Illinois’ and Indiana’s recognition of a common law tort for the invasion of the right to privacy.

            We conclude that none of the aforementioned federal statutes impedes the Secretary’s authority to request the disputed information. Specifically, under the ADA, any information obtained about an employee’s medical condition, as a result of an employer’s requirement that an employee submit to a medical examination or as a result of the employer conducting voluntary examinations, must be treated as a confidential medical record and collected and maintained on separate forms and in separate medical files. 42 U.S.C. § 12112(d)(3)(B), (4)(C); 29 C.F.R. §§ 1630.14(b)(1), (c)(1), (d)(1). Although there are exceptions to the confidentiality requirement, Petitioners correctly maintain that MSHA does not fall within any of the three enumerated exceptions found at 29 C.F.R. § 1630.14. However, section 1630.15(e) provides that “[i]t may be a defense to a charge of discrimination under this part that a challenged action is required or necessitated by another Federal law or regulation . . . . ” 29 C.F.R. § 1630.15(e). Thus, because the disputed information is required to be released to the Secretary pursuant to section 103(h) of the Mine Act and 30 C.F.R. § 50.41, and is necessary to ensure compliance with the Act, we do not see the ADA as a roadblock. See also EEOC Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Pt. 1630 App. 1630.15(e) (2000); accord Bay v. Cassens Transport Co., 212 F.3d 969, 974 (7th Cir. 2000) (“The ADA does not override health and safety requirements established under other Federal laws”) (citation omitted).

            Similarly, the FMLA, 29 U.S.C. § 2601 et seq., requires that all medical information obtained by employers pursuant to its provisions must be maintained in strict accordance with the ADA’s Title I confidentiality provisions found at 29 C.F.R. § 1630.14(b). See 29 C.F.R. § 825.500(g). However, disclosure is required to provide relevant information upon request by government officials investigating compliance with the FMLA or other pertinent law. See 29 C.F.R. § 825.500(g)(3). Because MSHA inspectors are government officials investigating compliance with “[an]other pertinent law,” i.e., the Mine Act, disclosure of the disputed records does not violate the FMLA. 

            Subject to some exceptions, GINA requires that employers treat and maintain an individual’s genetic information as a confidential medical record under section 102(d)(3)(B) of the ADA. 42 U.S.C. § 2000ff-5(a). Although the exceptions outlined in section § 2000ff-5(b) of GINA do not apply to MSHA, covered entities under the Health Insurance Portability and Accountability Act (“HIPAA”) that already possess a right of access pursuant to 45 C.F.R. § 164.512(b)(1)(i), are specifically exempted by GINA’s disclosure prohibition. 42 U.S.C. § 2000ff-5(c). Because MSHA is a covered entity under HIPAA, it is permitted access to miners’ medical information under GINA. See 45 C.F.R. § 164.512(b)(1)(i). Furthermore, section 1635.11(a)(5) of GINA’s regulations state that “[t]his part does not–[l]imit the statutory or regulatory authority of . . . the Mine Safety and Health Administration to promulgate or enforce workplace safety and health laws and regulations.” 29 C.F.R. § 1635.11(a)(5).

            In addition, state law is insufficient to prevent operator compliance with the Secretary’s audit initiative. Section 506 of the Mine Act provides that states may have concurrent jurisdiction with MSHA and that state law is not superseded by the Act “except insofar as such State law is in conflict with this chapter or with any order issued or any mandatory health or safety standard.” 30 U.S.C. § 955(a).

IV.

Conclusion

            For the reasons set forth herein, we conclude that the judge correctly ruled that Petitioners violated 30 C.F.R. § 50.41 by refusing to permit the Secretary access to the related payroll and medical information requested as part of the Part 50 audit. Accordingly, the citations and orders are affirmed.  

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Robert F. Cohen, Jr.

                                                                                    Robert F. Cohen, Jr., Commissioner

                                                                                    /s/ Patrick K. Nakamura                                                                               

                                                                                     Patrick K. Nakamura, Commissioner

Commissioner Duffy, dissenting:

            These proceedings raise in stark relief and taut contention a number of fundamentally worthy interests and values. For example, it is the Secretary’s responsibility to see to it that all reportable accidents, injuries, and illnesses are correctly recorded and those records maintained and made available to her so that she can evaluate the effectiveness of her enforcement program and determine whether current safety and health standards are adequate to protect miners. Likewise, operators have a right to know with certainty what is required of them in meeting their obligations under the Mine Act and in meeting their fiduciary duties to their employees with respect to the collection, maintenance, and release of sensitive personal information. Lastly, and most importantly, miners have a right to confidentiality and security with respect to their intimate health information. Each of these interests needs to be taken into account in arriving at a balance that fosters the purposes of the Mine Act while accommodating fundamental rights of privacy and due process.

            The Secretary’s actions in these cases fall woefully short of achieving that balance, and for that reason I would reverse the judge’s decisions and vacate the citations and orders at issue. I reach this conclusion with respect to broader considerations of law and public policy arising from MSHA’s auditing initiative which precipitated these enforcement actions, and with respect to the deficiencies inherent in the issuance of the particular citations and orders before us. In short, for the reasons articulated below, the Secretary’s actions are wrong in both a general and particular sense.

            As for the general deficiencies of the auditing initiative, it must be rejected as illegitimate because it cannot be reconciled with fundamental and manifest constitutional principles relating to privacy and due process. Supreme Court jurisprudence respecting the scope and legitimacy of warrantless access to private records demands that such records must first be required to be generated and maintained pursuant to enabling legislation or implementing regulations. Neither of those predicates obtains in these circumstances as the Secretary readily admits. Consequently, the Secretary is not authorized to demand records that have not been required to be maintained, either by the Mine Act or the regulations set forth in 30 C.F.R. Part 50.

            Even if I were to grant the Secretary the benefit of the doubt as to the legitimacy of her auditing initiative, I would nevertheless reverse the judge and vacate all of the citations and orders issued as being void ab initio. The enforcement actions here are invalid because the Secretary issued the citations and orders in the midst of muddled and contradictory signals as to what records were required to be surrendered, and, more fatally, without first having adopted a responsible and constitutionally valid protocol for safeguarding the privacy rights of the miners at these particular mines. Indeed, such a protocol was not finalized and made public until the very eve of the hearings in these cases and was still undergoing public explanation and clarification during and after oral argument before this Commission. Slip op. at 22 n.17. Therefore, regardless of the merits of the Secretary’s newly derived policy asserting her right of access to records not required to be generated and maintained by the Act or the regulations, that policy was incomplete, confusing, and inherently deficient when the demands for records were made and the enforcement actions were taken at these particular mines.

            Since I conclude that the enforcement actions in these cases must be vacated on the grounds that the auditing policy and the means by which it was specifically carried out against these operators were both constitutionally deficient, it is necessary to set forth the background necessary to those conclusions. I stress at the outset that the constitutional infirmities I find with respect to the auditing initiative affect both the operators and the miners who have taken issue with the program in these proceedings. The miners have a personal and proprietary interest in the medical records to which the Secretary seeks access that matches if not exceeds that of the operators. Therefore, the following discussion encompasses the constitutional implications of the auditing initiative for both the operators and the miners.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describe the place to be searched, and the person or things to be seized.

U.S. Const. amend. IV.

            Fourth Amendment protections against warrantless searches have been extended beyond private residences to commercial premises. New York v. Burger, 482 U.S. 691, 699-700 (1987). For example, warrantless inspections conducted by the Occupational Safety and Health Administration (“OSHA”) have been held unreasonable in the absence of the employer’s consent. Marshall v. Barlow’s, Inc., 436 U.S. 307, 313-15 (1978). The protection against unreasonable searches has been extended to the inspection of records whereby, as a general proposition, such inspections must be in accordance with a formal subpoena, which itself is subject to judicial review as to its reasonableness before sanctions for noncompliance can be imposed. See v. Seattle, 387 U.S. 541 (1967):

Official entry upon commercial property is a technique commonly adopted by administrative agencies at all levels of government to enforce a variety of regulatory laws; thus, entry may permit inspection of the structure in which a business is housed, as in this case, or inspection of business products, or a perusal of financial books and records . . . .

. . . . The agency has the right to conduct all reasonable inspections of such documents which are contemplated by statute, but it must delimit the confines of a search by designating the needed documents in a formal subpoena. In addition, while the demand to inspect may be issued by the agency, in the form of an administrative subpoena, it may not be made and enforced by the inspector in the field, and the subpoenaed party may obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.

Id. at 543-45 (emphasis added).

            As a general proposition, then, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). Accordingly, notwithstanding the unequivocal demands placed on the policing power by the Fourth Amendment, the Supreme Court has carved out careful exceptions when it comes to particular industries. Thus, the Court has allowed warrantless administrative inspections of certain establishments on the grounds that they have been pervasively regulated to the extent that their expectations of privacy have been reduced and that the nature of their activities has persuaded Congress that requiring a warrant would frustrate a substantial governmental purpose, such as frequent and unannounced inspections. See, e.g., United States v. Biswell, 406 U.S. 311 (1972) (firearms dealers); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) (alcoholic beverage industry).

            However, lest we lose sight of the principles undergirding the Supreme Court’s limited departure from its general intolerance for nonconsensual, warrantless entry onto commercial premises, the Court in both Biswell and Colonnade was careful to point out that access to records during a warrantless physical inspection of the premises is limited to those records specifically required to be maintained by statute and regulation. In Biswell, the statute at issue

authorizes official entry during business hours into “the premises (including places of storage) of any firearms or ammunition . . . dealer . . . for the purpose of inspecting or examining (1) any records or documents required to be kept . . . and (2) any firearms or ammunition kept or stored by such . . . dealer . . . at such premises.”

406 U. S. at 311-12 (quoting 18 U.S.C. § 923(g)) (emphasis added) (alteration in original). In Colonnade, the authorizing statute provided:

The Secretary or his delegate may enter during business hours the premises . . . of any dealer for the purpose of inspecting or examining any records or other documents required to be kept . . . under this chapter or regulations issued pursuant thereto . . .

397 U.S. at 73 n.1 (quoting 26 U.S.C. § 5146(b)) (emphasis added).

            These caveats were necessary to reconcile those rare instances where warrantless physical inspections of selected commercial premises would be tolerable notwithstanding the restrictive principles adopted for the vast majority of enterprises in See v. Seattle, supra. Thus, the Supreme Court has established that in order to justify an exception to the general prohibition against warrantless access to records and the requirement for a subpoena to compel the surrender of such records, there must first be a statutory or regulatory requirement that the records be generated and maintained. That law or regulation, by its specificity as to which documents must be generated and maintained, serves as a necessary and acceptable substitute for the specificity of a subpoena.

            In contradistinction to the experience of general industry under the OSHA statute, the Mine Act has been interpreted by the Supreme Court to permit warrantless nonconsensual searches of mines, both coal and noncoal, and both surface and underground. Donovan v. Dewey, 452 U.S. 594 (1981). The Court distinguished circumstances under the Mine Act from those under the OSHA statute by finding a substantial federal interest that would be significantly frustrated by a warrant requirement. Id. at 602-03. The Court further held that a warrant is not required for MSHA inspections because the mining industry’s long history of pervasive regulation has lowered the expectation of privacy among mine operators. Id. at 603-04.

            In distinguishing the relative expectations of privacy as between mine operators and those employers governed by the OSHA statute, the Court determined that the Mine Act “in terms of the certainty and regularity” of its inspection program (four yearly inspections of underground mines and two yearly inspections of surface mines), as opposed to OSHA’s random and unpredictable inspection program, “provides a constitutionally adequate substitute for a warrant” so that the mine operator “cannot help but be aware that he ‘will be subject to effective inspection.’” Id. at 603 (quoting Biswell, 406 U.S. at 316). The Court went on to explain, however, that such “awareness” was owing to the specificity of the regulatory program, including its regulatory requirements:

[T]he standards with which a mine operator is required to comply are all specifically set forth in the Act or in Title 30 of the Code of federal regulations. Indeed, the Act requires that the Secretary inform mine operators of all standards proposed pursuant to the Act. Thus, rather than leaving the frequency and purpose of inspections to the unchecked discretion of Government officers, the Act establishes a predictable and guided federal regulatory presence. Like the gun dealer in Biswell, the operator of a mine “is not left to wonder about the purposes of the inspector or the limits of his task.”

Id. at 604 (quoting Biswell, 406 U.S. at 316) (citation omitted).

            The Supreme Court’s decision in Donovan as it applies to the physical inspection of a minesite resonates strongly with the legislative history of the Mine Act. In explaining the breadth of an MSHA inspector’s right of entry “to, upon, or through” any mine, the Senate Committee Report states:

Section [103(a)] authorizes the Secretary . . . to enter upon, or through any mine for the purpose of making any inspection or investigation under this Act. This is intended to be an absolute right of entry without need to obtain a warrant. . . . . Safety conditions in the mining industry have been pervasively regulated by Federal and State law. . . . . The Committee notes that despite the progress made in improving the working conditions of the nation’s miners . . . mining continues to be one of the most hazardous occupations. Indeed, in view of the notorious ease with which many safety and health hazards may be concealed if advance warning of inspection is obtained, a warrant requirement would seriously undercut the Act’s objectives.

S. Rep. No. 95-181, at 27 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 615 (1978).

            With respect, therefore, to the right of entry for purposes of conducting a physical inspection of a mine and its facilities, Congress and the Supreme Court have most decidedly circumscribed the Fourth Amendment rights of mine operators on the grounds of longstanding and pervasive federal oversight of mining and the need to exercise an element of surprise to assure that hazards are discovered and corrected. That unbridled right of access does not, however, extend to any and all records in a mine operator’s possession.

            Donovan did not specifically address access to records, but since it is a direct outgrowth of the Supreme Court’s decisions in Biswell and Colonnade, it must be assumed that, insofar as access to records is concerned, the restrictions placed upon those agencies charged with enforcing laws relating to firearms (Biswell) and liquor (Colonnade) must also apply here to MSHA: the access is limited to those records that are required to be generated and maintained by the enabling statute or regulations duly promulgated pursuant to that statute. It should also be stressed that the urgency that may attend a physical inspection of a mine in search of safety and health hazards in no way attends the audits sought to be conducted here, particularly since the Secretary admits that she has no reason to believe that these operators have misreported or doctored their accident, injury, and illness experience as reflected in those records actually required to be maintained under the Act and Part 50. Peabody Tr. 25. Therefore, just as Biswell and Colonnade restricted a warrantless right of access only to records required to be maintained by statute or regulation, so also their progeny, Donovan, must be construed to limit MSHA’s access to records required to be maintained by the Act or Title 30.

            Unlike my colleagues, I view Donovan as inextricably linked to Biswell and Colonnade, such that their principles regarding access to records apply to the Secretary in her enforcement of the Mine Act. Biswell and Colonnade provide the basis for the Court’s rationale for ultimately distinguishing the Mine Act from the OSHA statute and for reaching different conclusions on warrantless access at minesites versus general industry work sites. My colleagues argue that section 103(h) of the Mine Act is broader than the record-keeping statutes at issue in Colonnade and Biswell. Slip op. at 25. However, that, by itself, does not answer the question of whether the Secretary’s designation of miners’ medical records as subject to her section 103(h) authority permits the Secretary to demand the production of those records without a warrant. In Donovan, the Supreme Court explained that a warrant was not required in Biswell because the authorizing legislation “provided a sufficiently comprehensive and predictable inspection scheme.” Donovan, 452 U.S. at 600 (emphasis added) (citing Biswell, 406 U.S. at 316). With regard to the element of “predictability,” the Court in Biswell allowed for warrantless inspections of gun dealerships because, due to the specificity of the statute at issue, “[t]he dealer is not left to wonder about the purposes of the inspector or the limits of his task.” 406 U.S. at 316 (emphasis added).

            In contrast, as the Court explained in Donovan, in Barlow’s it invalidated OSHA’s warrantless inspections, despite their being authorized by the OSHA statute, because the OSHA statute “does not provide any standards to guide inspectors either in their selection of establishments to be searched or in the exercise of their authority to search.” Donovan, 452 U.S. at 601 (emphasis added). The Court concluded that a statute that “simply provides that such searches must be performed ‘at reasonable times, and within reasonable limits and in a reasonable manner’” did not comport with the principles embodied in the Fourth Amendment. Id. As the Court highlighted in Barlow’s and other cases, a warrant may be necessary to protect against the “unbridled discretion [of] executive and administrative officers” so as to assure that “reasonable legislative or administrative standards for conducting an . . . . inspection are satisfied with respect to a particular [establishment].” Barlow’s, 436 U.S. at 320-23; Camara v. Municipal Court of San Francisco, 387 U.S. 523, 538 (1967).

            Two Sixth Circuit decisions, one issued prior to Donovan and one issued after, provide compelling authority for concluding that the inspection regime under the Mine Act necessarily falls within the rubric of Biswell and Colonnade and for the proposition that only records required to be maintained by the Mine Act or by duly promulgated regulations can be made subject to warrantless inspection. In Marshall v. Nolichuckey Sand Co., 606 F.2d 693 (6th Cir. 1979), a decision cited favorably by the Supreme Court in Donovan, the Sixth Circuit explained why the decision in Barlow’s did not preclude warrantless searches of mines: “On the contrary, Justice White made it clear that requiring a warrant for OSHA inspection does not doom warrantless search provisions in other regulatory statutes. ‘The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute.’” Id. at 696 (quoting Barlow’s, 436 U.S at 321). Among the privacy guarantees the Sixth Circuit identified in the Mine Act, was the fact that the Mine Act “permits warrantless inspections only of the ‘active workings’ of coal mines. A warrant is required for the inspection of offices and other areas where the operator has a general expectation of privacy.” Id. (citing United States v. Consol. Coal Co., 560 F.2d 214, 217 (6th Cir. 1977), vacated and remanded, 436 U.S. 942, judgment reinstated, 579 F.2d 1011 (1978)).

            In the post-Donovan case, United States v. Blue Diamond Coal Co., 667 F.2d 510 (6th Cir. 1982), the mine operator sought to suppress in a criminal proceeding documents that had been seized by the government during an investigation of the Scotia Coal Mine disaster. The documents in question were mine examination records that were required to be maintained by regulation and were located on a table in the mine office where mine inspectors had always had ready access to them. Id. The Sixth Circuit denied the request to suppress the evidence on the grounds that the inspector entered the mine office during reasonable hours and went only to areas where the records were maintained for purposes of government inspection. Id.

            In a concurring opinion, Judge Wiseman (District Judge, sitting by designation) more thoroughly distinguished the case at hand from the Court’s decision in Consolidation Coal:

The agents in Consolidation Coal sought “evidentiary indicia of compliance” with section 202 of the Act, 30 U.S.C. § 842. Section 842(a) required the transmittal of dust samples to the monitoring agency, but it did not require operators to make records of any sort available for inspection on the premises. This necessarily means that the items seized in Consolidation Coal were not records maintained in compliance with the Act, and thus the defendant retained a significant expectation of privacy as to their contents. On the other hand, all the books seized in the instant case were maintained for public inspection, as required by statute. 30 U.S.C. § 863(d)(1), (f), (g), (w). Consequently, defendants in the instant case had no expectation of privacy in regard to the contents of the records seized. . . .

Although Consolidation Coal Co. was engaged in a closely regulated business, the searches in that case required warrants because the governmental action impinged upon privacy interests that the company still retained, despite its pervasive regulation. Consolidation Coal is fully consistent with Marshall v. Barlow’s, Inc., as this Court found in its response to the Supreme Court’s remand for reconsideration in light of that case. It is also consistent with the Supreme Court’s Donovan decision. The entries in the instant case required no warrant, however, because defendants had no general expectation of privacy in either the premises entered or the records sought.Warrants are necessary to check the “unbridled discretion” of government agents as to when, where, and whom to search. That discretion was sufficiently limited in this case, because the agents were only authorized to search for records maintained for MESA inspection in areas freely accessible to MESA agents and other members of the public.

Id. at 522 (citations and footnote omitted).

            Here, the Secretary’s rejection of a rulemaking proceeding in favor of an ad hoc approach to obtaining miner medical records removes her chosen regulatory scheme from the ambit of Donovan to that of Barlow’s. Consequently, a warrant is required before she can make the individual demands for miner medical records that she seeks, or, more efficiently, she must set forth requirements for the generation, maintenance, and release of such records through notice and comment rulemaking.

            Although section 103(h) of the Mine Act does not require that the records being sought in these cases be maintained by mine operators (a fact the Secretary clearly acknowledges), it does authorize the Secretary to impose such a requirement:

                        In addition to such records as are specifically required by this Act, every operator of a coal or other mine shall establish and maintain such records, make such reports, and provide such information as the Secretary . . . may reasonably require from time to time to enable him to perform his functions under this Act.

30 U.S.C. § 813(h) (emphasis added).

            Notwithstanding the Secretary’s arguments to the contrary (S. Br. at 22-23), 30 C.F.R. § 50.41 does not serve to implement the authority of section 103(h) of the Act in a manner that passes constitutional muster, given the dictates of See, Biswell, Colonnade, and Donovan, supra. To purport that Section 50.41 requires mine operators to provide private medical records to the Secretary, without first requiring that those records be generated and maintained, is inimical to the principles governing access to records, even at those premises that the Supreme Court has held to be subject to warrantless physical inspections. Furthermore, in light of the fundamental doctrine that statutes and regulations must be interpreted so as to avoid a conflict with the Constitution, it would be impermissible to find that 30 C.F.R. § 50.41 by its terms can eliminate the predicate requirement that records sought by the Secretary must first be required to be generated and maintained by mine operators pursuant to a specific provision of the Mine Act or the regulations. See, e.g., Chamber of Commerce v. Federal Election Commission, 69 F.3d 600, 604-05 (D.C. Cir. 1995), where the court denied that Chevron deference was warranted when the FEC’s definition of a key term in the enabling legislation was possibly violative of the First Amendment: “We are obliged to construe the statute to avoid constitutional difficulties if such a construction is not plainly contrary to the intent of Congress.”

            Taking Biswell and Colonnade at their clear prescriptive force, the Secretary may not as a constitutional matter, seek to implement the authority of section 103(h) by fiat. She must do so by means of notice-and-comment rulemaking— the only legitimate way of assuring that a proper rationale has been adopted that justifies the exception to the rule prohibiting warrantless access to records that are inherently private and sensitive. Thus, the term “may reasonably require from time to time” has to mean “require” by means of a duly promulgated rule, not by a demand by the inspector in the field. It cannot be read to legitimize demands for the release of records that can change from one inspection to the next, one mine to the next, or one MSHA district to the next. Indeed the arbitrariness of the auditing initiative is fully demonstrated by the history of these particular cases.

            On October 19, 2010, when the Secretary first notified the Peabody Petitioners of her need for records beyond those required to be generated and maintained under the Act and under Part 50, the request, broad and ill-defined, included a demand for the surrender of:

                        Medical records in your possession for all persons employed for the period of July 1, 2009 through June 30, 2010, as listed below:

Worker compensation filings, FMLA releases and records, sick leave records, tests including drug tests, studies, medical reports, medical histories, treatment notes, fact sheets, transfer records, EMT or ER notes, ambulance reports, explanation of benefits (EOB), UB 92s, HICFs, nursing notes, chest x-rays.

Peabody Hearing, Ex. C-A.

            The request was so broad as to include all medical records whether or not they were related to accidents, injuries, and illnesses that arose from events or conditions at the mine.

Thereafter, on October 28, 2010, in response to the operator’s objection to the breadth of the first request, the Secretary revised her request and demanded:

All medical records, doctor’s slips, worker compensation filings, sick leave requests or reports, drug testing documents, emergency medical transportation records, and medical claims forms in your possession relating to accidents, injuries, or illnesses that occurred at the mine or may have resulted from work at the mine for all individuals working at your mine for the period of July 1, 2009 through June 30, 2010.

Id., Ex. C-D.

            While the revised request is somewhat more focused than the first request, it is still subject to broad interpretation, particularly with regard to the phrase “or may have resulted from work at the mine.” There are no criteria for determining whether or not an illness or condition such as hearing loss, dermatitis, or back pain should be attributed to activities or conditions at the minesite, or rather to activities or conditions away from the minesite. Likewise, the request, insofar as it refers to “all individuals working at your mine,” rather than to “all individuals employed by you,” would seem to hold the operator accountable for the medical records of employees of independent contractors who have no employment relationship with the operator. Moreover, since the request seems to have originated with those MSHA employees charged with conducting the audits at issue, there is no assurance that future requests won’t gravitate toward the open-ended and amorphous form of the original request quoted above.

            The Secretary attempts to assure the Commission that it can trust that her requests will be reasonable, but also asserts in the preamble to Part 50, 42 Fed. Reg. 65535 (Dec. 30, 1977), and in her arguments throughout this litigation, that only she can determine the relevance of the information she seeks. Moreover, while she pays lip service to the operators’ and the miners’ rights to judicial review of her demands for warrantless access to documents not required to be maintained by the Mine Act or Part 50, I find that to be undermined by her concomitant argument that she is owed great deference on the matters of reasonableness and relevance. See S. Br. at 15. Under such circumstances, judicial review becomes something of an empty exercise with a predetermined outcome. 

            Moreover, it has not been established with the level of assurance that matters of confidentiality require that the Secretary has taken all steps to ensure that the inherent privacy rights of miners have been protected and that she has adequately responded to their concerns. In fits and starts, the MSHA auditing initiative has been massaged as this litigation has proceeded in an attempt to address – on the fly – the miners’ privacy rights. However, when constitutional issues are implicated in a regulatory scheme, ad hoc, seat-of-the-pants adjustments and assertions of deference owed to the regulator’s good intentions are not enough.

            The fact remains that at the time these citations and orders were issued, the Secretary had no policy in place that specifically and comprehensively addressed the collection of the miners’ personal medical information, the limitations on access by MSHA personnel and others to that information, the means by which the information would be stored, the length of time the information would be retained by MSHA, the uses to which the information would be put, the sanctions that would be imposed for the unauthorized disclosure of the information, and the procedures by which miners would be notified as to the release of the information and their opportunity to have input into how the information would be utilized.

            The Secretary should not be allowed to attempt to remedy these glaring deficiencies post hoc simply for the sake of administrative convenience or to salvage the citations and orders at issue. When fundamental constitutional rights are placed in potential jeopardy by the Secretary’s ill-defined and shape-shifting initiative, it is not legally permissible to allow her a procedural “mulligan.” A protocol for protecting the miners’ interests in their personal and confidential records is required and, by the dictates of the Supreme Court’s pronouncements outlined above, that protocol must take the form of a regulation promulgated through notice-and-comment rulemaking. The Secretary’s failure to adopt that course before resorting to the enforcement actions taken here provides sufficient grounds for vacating these particular citations and orders as void ab initio, notwithstanding the broader illegitimacy of the auditing initiative.

            The miners cite the case of United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010), for the proposition that a mere administrative demand, however well intentioned, for confidential records held by a third party that intrudes upon the reasonable expectations of privacy of individuals may well impinge upon the Fourth Amendment rights of those individuals. Interv. Br. at 13. I find that argument compelling in the circumstances presented here. Warshak dealt with personal and business e-mail communications; here we are dealing with much more intimate information, the unauthorized disclosure of which could be embarrassing, even devastating.

            My colleagues cite United States v. Miller, 425 U.S. 435 (1976), as grounds for rejecting the miners’ assertion of a right to privacy regarding their medical records. Slip op. at 27. That reliance is unavailing. Miller involved business documents such as cancelled checks and deposit slips that were voluntarily generated and provided to a bank by an individual under criminal investigation. Id. at 442 (“All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.”). Furthermore, the Court in Miller set forth a crucial caveat that the majority ignores: “We are not confronted with a situation in which the Government, ‘through unreviewed executive discretion,’ has made a wide-ranging inquiry that unnecessarily ‘touch[es] upon intimate areas of an individual’s personal affairs.’” Id. at 444 n.6 (quoting California Bankers Ass’n v. Shultz, 416 U.S. 21, 78-79 (1974) (Powell, J., concurring). That caveat provided the rationale by which the court in Warshak, supra, distinguished its own holding from Miller:

But Miller is distinguishable. First, Miller involved simple business records, as opposed to the potentially unlimited variety of “confidential communications” at issue here. Second, the bank depositor in Miller conveyed information to the bank so that thebank could put the information to use “in the ordinary course of business.”

631 F.3d at 288. The personal medical records of these miners most certainly qualify as “intimate areas of an individual’s personal affairs” – even more so than the e-mails at issue in Warshak – and as such are fully deserving of Fourth Amendment protection. Moreover, the miners do not voluntarily elect to invest the operators with the authority to keep the medical records. They are automatically created as a condition of employment and for the attendant purpose of securing insurance coverage.

            There is no question that mine operators must make available to MSHA inspectors those records specifically required to be generated and maintained by the Act or by duly promulgated regulations set forth in Title 30 of the Code of Federal Regulations. For example, in 1987, the Associate Solicitor of Labor for Mine Safety and Health, Edward Clair, issued an opinion letter stating, “[I]t is our position that MSHA has a right of access to any information required to be maintained by the Mine Act or the implementing regulations in Part 50,” basing his opinion on the “key factor” that authorized access depends upon “whether the information is required to be maintained under the Mine Act or implementing regulations.” Peabody Hearing, Ex. C-I.

            Likewise, this Commission and the courts have upheld MSHA’s right to inspect reports required to be maintained by the Mine Act. Peabody Coal Co. 6 FMSHRC 183 (Feb. 1984) (operator’s accident investigation report); Youghiogheny & Ohio Coal Co. v. Morton, 364 F. Supp. 45 (S.D. Ohio 1973) (concluding that “maps, books, and records which are maintained for and in compliance with the Mine Safety Act” must be produced upon an inspector’s demand).

            The seminal judicial pronouncement on MSHA’s right of access to records not required to be generated or maintained by the Act or the regulations was former Chief Administrative Law Judge Broderick’s decision in Sewell Coal Co., 1 FMSHRC 864 (July 1979) (ALJ). In that decision the judge held that MSHA inspectors were not authorized to inspect “records not specifically required to be kept by law.” Id. at 871. Of fundamental importance to Judge Broderick (and what must be of fundamental importance in these proceedings as well) was the “cardinal rule” of statutory construction that required him to interpret the Act “so as to avoid conflict with the Constitution.” Id.

            The Secretary discounts the influence that should be accorded Sewell by arguing that it is an unreviewed decision. For purposes of sound authority, if the decision is correct, and it is, it makes no difference whether it was reviewed or not. Indeed, even while noting that Sewell was an unreviewed decision, the Commission majority in BHP Copper, Inc., 21 FMSHRC 758 (July 1999), gave Chief Judge Broderick’s decision wide berth by taking pains to distinguish the request for a miner’s telephone number during an accident investigation in BHP from an inspector’s attempt to access medical records in Sewell (id. at 767 n.15,) and ultimately based its decision on the Secretary’s duty to investigate accidents under section 103(a) of the Mine Act, not her right of access to records under section 103(h). Id. at. 765 n.12; see also Peabody, 6 FMSHRC at 186 n.5 (“Because this case involved only a request for records specifically required by the Act to be maintained, it does not present the situation faced in Sewell . . . . There the inspector sought to personally review accident, injury and illness and medical and compensation records at the mine. Those records were contained in individual personnel files which also contained other data not required to be maintained by the Mine Act.”).

            Moreover, the Secretary can point to no cases since Sewell was issued more than three decades ago where she has taken enforcement action to compel surrender of medical records not required to be generated and maintained by the Act or Part 50. That would seem to underscore the continuing potence of the Chief Judge’s logic in Sewell.

            The judge below and the Secretary on appeal attempt to distinguish Sewell from the present case by noting that in Sewell the inspector sought to inspect the records himself, whereas here the inspectors simply asked the operators to inspect the records and turn over those documents referred to in the demand letters. 33 FMSHRC at 1318; 33 FMSHRC at 1400; S. Br. at 19. The practical effect of both approaches is the same— the Secretary is able to secure nonconsensual, warrantless access to private records not required to be maintained by the Mine Act or Part 50. It is a distinction without a difference. More importantly, from the perspective of the miners whose confidential records are at stake, it doesn’t matter whether the “rummager” is the inspector or the mine operator’s agent acting on orders from the inspector. In the absence of a regulatory standard governing the maintenance and release of these medical records, the infringement on miners’ expectations of privacy is the same— particularly in circumstances where the operator’s agent is apprised of the potential for civil penalties of up to $7500 per day for failure to comply with the inspector’s demand. See 30 C.F.R. § 100.5(c).

            In addition to the conflicts with Fourth Amendment principles, the auditing initiative is also violative of the due process rights of operators and the miners employed at mines made subject to the audits.

            Section 103(h) of the Mine Act and Part 50 of Title 30 are of universal application to all mines— from underground coal mines employing 500 miners to mom and pop gravel quarries employing five miners. Operators, regardless of size, status, or location, are entitled to be regulated by binding norms that apply equally to all operations. Moreover, those binding norms must, by the dictates of the Mine Act and the Administrative Procedures Act, be specifically and unambiguously set forth in regulations adopted in consequence of public notice and comment. The demands made in these cases, ostensibly in contemplation of imposing pattern of violation sanctions (Oral Arg. Tr. 46), lack that universality and specificity. For example, there is nothing to prevent a demand for the prior one year’s medical records at one mine in one MSHA district versus a demand for the prior two years’ medical records at a different mine in a different MSHA district. The criteria and scope of the requests seem to be dependent more upon the level of curiosity of the various auditors than by any standard, industry-wide system for records generation and retention. There is no predictability, no notice of what can be required to be maintained and released.

            Section 103(h) refers to “every operator of a coal or other mine” as having the responsibility to provide information to the Secretary, but the auditing initiative does not apply to all operators. It could only be applicable across the board if all operators were required to generate and maintain the medical and employment records being sought. By imposing the obligation to turn over records not specifically required to be maintained by regulation, the auditing initiative effectuates disparate treatment of those operators and the miners they employ who by fiat are brought within the ambit of the auditing initiative. Since the Secretary is not alleging that the operators in these proceedings were suspected of under reporting accidents, injuries, or illnesses in those documents that are specifically required to be maintained by the standards set forth in Part 50, the disparate treatment here cannot be justified as having been imposed for good cause, an essential component in determining whether a warrantless search of records is justified in general terms. See v. Seattle, supra.

            Once a mine is randomly subjected to an audit of the kind contemplated in these cases, it can be assumed that the records would have to be maintained and made available prospectively, notwithstanding the lack of a regulatory mandate to do so, in order to avoid criminal sanctions under section 110(f) of the Mine Act, 30 U.S.C. § 820(f), or other laws applicable to the maintenance of records in contemplation of potential litigation. This disparate treatment as between mines inside and outside the MSHA auditing initiative raises additional due process concerns that have not been taken into account by the Secretary in imposing this initiative on a random basis with the potential for vacillating requirements from mine to mine and request to request. Furthermore, without formal standards setting forth the types of records that may be demanded and the time periods for which the demand can be made, the auditing initiative will continue to be an arbitrary moving target which this Commission and its judges will be continuously asked to review for “reasonableness.”

            To be sure, the Secretary has made a strong case justifying her need to inspect these types of records in order to verify the accuracy of records that are explicitly required by the regulations, and to determine whether accident, injury, and illness statistics at a given mine are so appreciably high that they should be factored into a decision to impose the severe sanction of a pattern of violation notice. However, Congress and its standard-setting surrogates, the regulatory agencies, must tailor their statutes and regulations to the immutable patterns provided by the Constitution. We cannot stretch and trim the Constitution to fit the current fashion. Regulatory strategies, no matter how well intentioned, must not serve to contort those inherent rights and privileges intrinsic to a constitutionally protected society.

            I cannot emphasize enough that I agree in principle with my colleagues that the Secretary can have access to the private medical records of miners that she seeks here, but she cannot gain that access by fiat. The auditing initiative, in order to avoid conflict with fundamental constitutional principles, must be subjected to the protections and the safeguards that only public notice-and-comment proceedings can provide. The requirement for rulemaking does not place an undue burden on the Secretary. Indeed she is currently engaged in developing rules for imposing pattern of violations sanctions on mine operators pursuant to the authority of section 104(e) of the Act. 30 U.S.C. § 824(e); 76 Fed. Reg. 5719 (Feb. 2, 2011). Since the auditing initiative is apparently intended to provide data to aid in the decision on whether to impose the pattern of violations sanction, it is only appropriate that this crucial component be added to the agenda of the rulemaking proceeding. The Fourth Amendment permits no other way.

            We pride ourselves on being a government of laws and not of men. Accordingly, no matter how attractive and efficient a regulatory initiative may be in the abstract, if it implicates fundamental rights of privacy and due process, if it imposes new obligations not found in current regulations, and if it constitutes a radical departure from decades of prior practice and policy, it must be promulgated subject to the full scrutiny and input of those who must live with and under it.

            Accordingly, I would reverse the judge and vacate all citations and orders issued in these cases.

                                                                                    /s/ Michael F. Duffy

                                                                                    Michael F. Duffy, Commissioner

Distribution:

Robin Rosenbluth, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2228

Arlington, VA 22209

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Samuel Lord, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22^nd Floor West

Arlington, VA 22209-2247

Daniel W. Wolff, Esq.

Crowell & Moring LLP

1001 Pennsylvania Avenue NW

Washington, DC 20004-2595

Thomas C. Means, Esq.

Crowell & Moring LLP

1001 Pennsylvania Avenue NW

Washington, DC 20004-2595

Alexander Macia, Esq.

Spilman, Thomas & Battle, PLLC

300 Kanawha Blvd. East

P.O. Box 273, Charleston, WV 25321

James A. Lastowka, Esq.

McDermott Will & Emery LLP

600 13^th Street NW

Washington, DC 20005-3096

Arthur G. Sapper, Esq.

McDermott Will & Emery LLP

600 13^th Street NW

Washington, DC 20005-3096

Administrative Law Judge Kenneth Andrews

Federal Mine Safety & Health Review Commission

Office of the Administrative Law Judges

7 Parkway Ctr.

875 Greentree Rd., Suite 290

Pittsburgh, PA 15220

Administrative Law Judge Janet Harner

Federal Mine Safety & Health Review Commission

Office of the Administrative Law Judges

7 Parkway Ctr.

875 Greentree Rd., Suite 290

Pittsburgh, PA 15220