In evaluating whether mines should be subjected to Pattern of Violations enforcement (in which every “significant and substantial” violation will result in a closure order), MSHA considers, among other things, each mine’s accident and injury history. According to MSHA Assistant Secretary Joe Main: “Mine operators should be aware that we are not going to rely on what they report to make such critical determinations. We will check those records ourselves.”

When MSHA demanded accident, injury and illness data from a number of Massey and Peabody coal mines, both companies refused to provide the documents, citing privacy concerns. MSHA issued citations alleging the mines to be in violation for not providing required documents. The citations were contested by the companies. Federal Mine Safety and Health Review Commission Administrative Law Judge Kenneth Andrews ruled in favor of MSHA, upholding the citations and rejecting mine operator arguments that the records are “sensitive and private.”

The regulation MSHA relied on is 30 CFR 50.41 concerning “Verification of reports.” It states:

Upon request by MSHA, an operator shall allow MSHA to inspect and copy information related to an accident, including injury or illnesses which MSHA considers relevant and necessary to verify a report of investigation…or relevant and necessary to a determination of compliance with…reporting requirements [in 30 CFR Part 50].

Judge Andrews held that MSHA has a right under this regulation to review records maintained by the operator. He characterized MSHA’s demands as “a reasonable exercise of government responsibility.” He said that MSHA’s “interest in promoting mine safety far outweighs any interest the mine operators may have in privacy.”