The opinion of the court was delivered by: MCGLYNN
In this enforcement proceeding, the Occupational Safety and Health Administration (OSHA) seeks an order compelling the American Olean Tile Company to produce records in the company's possession. The records requested may reveal the degree of exposure of employees to lead and silica, two potentially hazardous substances the company uses to manufacture ceramic tile. The company furnished OSHA with a portion of the documents, but refused to supply the remainder on the grounds that the subpoena infringed upon the company's Fourth and Fifth Amendment rights, that the subpoena was not authorized by § 8(b) of the Occupational Safety and Health Act, 29 U.S.C. § 657(b), and that the request was unduly burdensome and oppressive. OSHA disputes these contentions, asserting that the subpoena was proper in its entirety because all the information sought was relevant to a lawful investigation.
The Fourth Amendment prohibition against unreasonable searches and seizures limits the permissible scope of an administrative subpoena.
Before enforcing a subpoena, a court must determine that "the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant." United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S. Ct. 357, 369, 94 L. Ed. 401 (1950). The district court must order the production of any evidence not "plainly incompetent or irrelevant to any lawful purpose." Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S. Ct. 339, 343, 87 L. Ed. 424 (1943). See also, Federal Trade Commission v. Texaco, 180 U.S. App. D.C. 390, 555 F.2d 862 (D.C.Cir.), cert. denied, 431 U.S. 974, 97 S. Ct. 2939, 53 L. Ed. 2d 1072 (1977); United States v. McGee Industries, 439 F. Supp. 296, 298 (E.D.Pa.1977), aff'd, 568 F.2d 771 (3d Cir. 1978). To be sure, a search through all records, relevant or irrelevant, would clearly violate the Fourth Amendment. Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 44 S. Ct. 336, 68 L. Ed. 696 (1924). The Fourth Amendment, however, "at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be "particularly described,' if also the inquiry is one the demanding agency is authorized to make and the materials specified are relevant." Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208, 66 S. Ct. 494, 505, 90 L. Ed. 614 (1946). "The gist of the protection is in the requirement . . . that the disclosure sought shall not be unreasonable." Id. See also, United States v. Jay Freeman Co., 473 F. Supp. 1265 (E.D.Ark.1979).
We first examine the wide authority delegated to the Secretary of Labor under the Occupational Safety and Health Act. The Secretary is empowered to enforce the Act by issuing citations when he believes a violation has occurred. § 9, 29 U.S.C. § 658. He is also authorized to promulgate occupational safety and health standards. 29 U.S.C. § 655. Thus, the Secretary performs both enforcement and legislative functions. This combination of functions was carefully considered by Congress and finalized only after considerable debate. See, e.g., 1970 U.S.Code Cong. and Administrative News at 5229. The Secretary is also authorized to require an employer to keep records appropriate for enforcement or for development of information regarding the causes and prevention of occupational accidents and illnesses. 29 U.S.C. § 657(c). Finally, the Secretary may conduct inspections and investigations and require the attendance of witnesses and the production of evidence under oath. This subpoena power is at issue here.
The varied responsibilities delegated to the Secretary define the breadth of his subpoena power. In 29 U.S.C. § 657(a)(1) Congress authorized inspections and investigations "in order to carry out the purposes of this chapter." The statute supplements this authority by stating that "in making his inspections and investigations under this chapter the Secretary may require the attendance and testimony of witnesses and the production of evidence under oath." 29 U.S.C. § 657(b). Therefore the scope of the subpoena power is based upon the investigations which in turn depend upon "the purposes of this chapter".
Much of defendant's argument is based upon the supposition that investigations may only be conducted for enforcement purposes, i. e., to issue citations. Under this view, since citations may only be issued within six months following the occurrence of the violation, 29 U.S.C. § 658(c), the subpoenaed material antedating this six month period is irrelevant. But as noted above, the Secretary performs legislative as well as enforcement functions. He needs information to develop standards as well as to enforce compliance with those standards. Although he may obtain that information through recordkeeping requirements or investigations by the National Institute of Occupational Safety and Health (NIOSH), inspections and evidence subpoenaed may also provide useful data. Because the remedial purposes of the Act may be furthered by inspections and subpoenas designed to explore the causes and prevention of occupational illnesses, we decline to find that the authorization of inspections "to carry out the purposes of this chapter" extends only to enforcement. If the information requested is relevant to any of the Secretary's functions and its production is not unduly burdensome, the subpoena should be enforced.
The Fourth Amendment also requires that the subpoena not unduly burden the company. We think the subpoena as limited by OSHA's subsequent definition falls within proper boundaries. The request is restricted in time to 1974 forward. There is no evidence that the number of records for this period is excessive. Secondly, OSHA has confined its request for medical records to those relevant to lead and silica levels and has specified with particularity certain tests including x-rays and pulmonary function examinations. Finally, OSHA has offered to send its own employees to search through the records and, if ...