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UNITED STATES v. AMALGAMATED LIFE INS. CO.

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK


March 22, 1982

UNITED STATES of America, Petitioner,
v.
AMALGAMATED LIFE INSURANCE COMPANY, Respondent

The opinion of the court was delivered by: EDELSTEIN

MEMORANDUM OPINION

The United States petitioned this court for an order compelling Amalgamated Life Insurance Company ("Amalgamated") to comply with an administrative subpoena issued and served by the National Institute of Occupational Safety and Health ("NIOSH"). A hearing on the matter was held on February 16, 1982, after which the court ruled from the bench in favor of NIOSH.

 NIOSH was established by Congress to perform the functions of the Secretary of Health and Human Services ("HHS") under the Occupational Safety and Health Act ("OSHA"). 29 U.S.C. § 669(e), 671. *fn1" HHS's, and ultimately NIOSH's, role under OSHA is to conduct research and experiments relating to occupational safety and health. *fn2" 29 U.S.C. § 669(a).

 NIOSH is currently engaged in a study to determine the potential carcinogenicity of exposure of garment workers to formaldehyde. Respondent Amalgamated, as the insurer of the garment workers who are the subject of the NIOSH study, maintains various records relating to the deaths of the workers. *fn3" Accordingly, on July 27, 1981 NIOSH served Amalgamated with a subpoena requesting that it make available for inspection various documents and materials. *fn4" Amalgamated refused to comply with the subpoena, and this action followed.

 Amalgamated argues that NIOSH does not have the power to subpoena third-party recordkeepers, such as itself. This is a case of first impression, as NIOSH apparently has never sought enforcement of a subpoena directed to third party recordkeepers.

 NIOSH's inspection and investigative authority is contained in Section 669(b):

 

(NIOSH) is authorized to make inspections and question employers and employees as provided in section 657 of this title in order to carry out ... (its) functions and responsibilities ....

 Section 657 provides mechanisms for inspections, investigations and recordkeeping in the enforcement of OSHA. Section 657(a) authorizes entry into places of employment. Section 657(b) authorizes the issuance of subpoenae: "In making his inspections and investigations under this Act the Secretary (of Labor) may require the attendance and testimony of witnesses and the production of evidence under oath." Amalgamated argues, however, that the language of Section 669(b) referring to "employers and employees" limits to those groups NIOSH's subpoena power under Section 657.

 The court does not read Section 669(b) so narrowly. Section 669(b) refers to making "inspections" as well as questioning "employers and employees." Although the term "inspection" is not included in the definitional section of OSHA, 29 U.S.C. § 652, the term is used broadly in the statute. The authority under Section 657(b) to issue subpoenae exists in part to make "inspections." Thus, "inspection" refers to more than the physical inspection of a place of work. It also includes the use of subpoena power to take testimony and require the production of documents.

 Most references in OSHA to "inspections" are accompanied by a reference to "investigations." The court does not find significant that in Section 669(b) the term "inspections" is not followed by "investigations". Congress was not instructing NIOSH that it could "inspect" but not "investigate". Rather, the "inspections" and "employers and employees" language of Section 669(b) is a general reference to the powers listed in Section 657.

 The court holds that NIOSH's subpoena power is not restricted to employers and employees. Section 669(b) grants NIOSH all of the powers contained in Section 657 in order to perform its functions and responsibilities. United States v. Allis-Chalmers Corp., 498 F. Supp. 1027, 1028 (E.D.Wis.1980) ("Section 669(b) appears to grant HEW and NIOSH all the powers, including subpoena authority, granted by Congress to the Secretary of Labor."). See also United States v. Westinghouse Elec. Corp., 638 F.2d 570, 575 (3d Cir. 1980); General Motors Corp. v. Director of the National Institute of Occupational Safety and Health, 636 F.2d 163, 165 (6th Cir. 1980); E. I. duPont de Nemours and Co. v. Finklea, 442 F. Supp. 821, 824 (S.D.W.Va.1977); Marshall v. American Olean Title Co., 489 F. Supp. 32, 34 n.2 (E.D.Pa.), aff'd without opinion, 636 F.2d 1209 (3d Cir. 1980). Restricting NIOSH's subpoena power to employers and employees would be contrary to the congressional intent in enacting OSHA.

 An administrative subpoena is valid if, under the rule of United States v. Morton Salt Company, 338 U.S. 632, 652, 70 S. Ct. 357, 368, 94 L. Ed. 401 (1950), "the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant." The inquiry by NIOSH into the potential carcinogenicity of formaldehyde exposure at the workplace is clearly within its authority, and the records sought are relevant. Amalgamated does not argue that the demand for production is too indefinite.

 Amalgamated does assert, however, that the documents sought are protected by a constitutional right of privacy and are privileged. Amalgamated is confronted with what are apparently fatal obstacles in pursuing these claims. The employees for whose benefit Amalgamated is seeking to prevent disclosure are deceased. *fn5" The right to privacy, however, terminates upon death and does not descend to the heirs of the deceased. See Price v. Hal Roach Studios, Inc., 400 F. Supp. 836, 844 (S.D.N.Y.1975); Meeropol v. Nizer, 381 F. Supp. 29, 37 (S.D.N.Y.1974), aff'd in relevant part, 560 F.2d 1061, 1068 (2d Cir. 1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 727, 54 L. Ed. 2d 756 (1978).

 Even if the subpoenaed records are within the ambit of the constitutionally protected right of privacy, the court must still balance that right against the public interest in disclosure. See United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980). NIOSH is part of a comprehensive scheme to further occupational safety and health by performing relevant research, experiments and investigations. In this case, NIOSH seeks to determine whether formaldehyde has "potentially toxic effects in such concentrations as used or found...." 29 U.S.C. § 669(a)(6). This investigation clearly furthers a significant public interest. There is no claim that the records here are sensitive or that NIOSH will disclose or misuse any confidential data. See E. I. duPont de Nemours and Co. v. Finklea, 442 F. Supp. 821, 825 (S.D.W.Va.1977). The court finds the public interest furthered by NIOSH's study and the need for the subpoenaed records outweigh any privacy interest which may exist in the records.

 Amalgamated also claims that the death certificates sought by the subpoena are privileged under New York law. *fn6" However, existence of a privilege is determined under federal, not state, law in cases in which jurisdiction is based on a federal question. United States v. Allis-Chalmers, 498 F. Supp. 1027, 1029 (E.D.Wisc.1980); see Lora v. Board of Education, 74 F.R.D. 565, 574-76 (E.D.N.Y.1977); Fed.R.Evid. 501. There does not appear to be a privilege for death certificates under federal common law or statute and Amalgamated has not suggested that one exists.

 In view of the foregoing the motion to compel is granted.


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