APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-774)
Before Hunter, Weis and Sloviter, Circuit Judges.
In this case, we attempt to reconcile the privacy interests of employees in their medical records with the significant public interest in research designed to improve occupational safety and health.
The National Institute for Occupational Safety and Health (hereinafter NIOSH) was established by the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq. (1976). NIOSH has the authority to "develop and establish recommended occupational safety and health standards," 29 U.S.C. § 671(c)(1), and to conduct research concerning occupational safety and health, 29 U.S.C. §§ 671(c)(2), 669. In particular, it has the authority to conduct a health hazard evaluation, which entails an investigation to
determine following a written request by any employer or authorized representative of employees, specifying with reasonable particularity the grounds on which the request is made, whether any substance normally found in the place of employment has potentially toxic effects in such concentrations as used or found.
On February 22, 1978, NIOSH received a written request for a health hazard evaluation from an officer of the International Union of Electrical Workers, Local 601, an authorized representative of the employees at Westinghouse Electric Corporation's plant in Trafford, Pennsylvania. The Trafford plant manufactures, inter alia, electric insulators by means of an epoxy mold process. The complaint concerned two areas in the Trafford plant, the "bushings aisle" or TC-72, and the "epoxy aisle" or TC-74, and alleged that workers were suffering allergic reactions as a result of exposure to methyl ethyl ketone. The Director of NIOSH initiated an investigation pursuant to his authority under 29 U.S.C. § 669(a)(6).
On April 21, 1978, an industrial hygienist and two physicians employed by NIOSH performed a walk-through inspection. They determined that the conditions which led to the complaint concerning TC-72 had been remedied and no further evaluation of that area was required. However, although methyl ethyl ketone was found not to be a potential health hazard, hexahydrophthalic anhydride, or HHPA, was used in significant quantities in TC-74, and the physicians suspected that it might be causing allergic reactions in some workers. The physicians therefore recommended that environmental and medical testing be done regarding the presence and effect of HHPA in the TC-74 area.
Dr. Thomas Wilcox, a Medical Project Officer in the Hazard Evaluation and Technical Assistance Branch of NIOSH, and G. Edward Burroughs, an industrial hygienist, visited the site and requested access to the company's medical records of potentially affected employees in the TC-74 area. A Westinghouse official replied that access would be difficult because the records were considered confidential.*fn1
On December 28, Wilcox sent written notice to Westinghouse that the health hazard evaluation would be conducted in January, 1979. He requested a list of present TC-74 employees and of past TC-74 employees working elsewhere in the plant, access to the medical records of these employees and of other employees with intermittent exposure to the TC-74 area who were willing to participate in the evaluation, and an outline of the routine procedures for health monitoring of TC-74 employees. Westinghouse supplied a list of present TC-74 employees, maintained that it could not supply a list of its present employees no longer working on that aisle, denied access to the medical records, and did not inform NIOSH concerning the health monitoring procedures.
Thereafter, the Director of NIOSH issued a subpoena duces tecum to Westinghouse's custodian of records at the Trafford plant, requiring the production of "(medical) records of all employees presently employed in the TC-74 area and the medical records of all employees who formerly worked in the TC-74 area and who now work elsewhere in the plant." Westinghouse refused to honor the subpoena.
Meanwhile, Wilcox performed blood tests and pulmonary function tests and conducted medical interviews with a majority of the present TC-74 employees. He found detectable levels of HHPA antibodies in 12 out of 28 employees tested. Several of these employees complained of allergic symptoms while in or near the TC-74 area. Some employees' lung capacity was less than that which would be expected for persons of their age, height, sex and race. A summary of Wilcox's preliminary findings was distributed to Westinghouse and to TC-74 employees in March 1979. Each employee participating in the study also received his or her own laboratory results and a personal letter from Wilcox explaining their medical significance.
Wilcox repeated his request for the employees' medical records maintained by Westinghouse. In reply, Westinghouse informed NIOSH that it would supply those records (1) if the employees provided "written informed consent" authorizing Westinghouse to supply the records and (2) if Westinghouse was "provided with written assurance by the United States Government that the contents of these records will not be disclosed to third parties."
NIOSH then filed this action in the district court seeking an order to enforce its subpoena. Following a hearing, the district court granted NIOSH's petition and ordered full enforcement of the subpoena. United States v. Westinghouse Electric Corp., 483 F. Supp. 1265 (W.D.Pa.1980). The court found that the subpoena therefore met all the requirements for enforcement of an administrative subpoena outlined in United States v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950). The court rejected Westinghouse's claim that the information was protected from disclosure, holding that even if Westinghouse had asserted a physician-patient privilege it would have been to no avail because "(n)o physician-patient privilege exists as a matter of federal common law" and Pennsylvania's physician-patient privilege was too narrow to cover this material since it applied only to communications which would blacken the patient's reputation. The court relied instead on Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977), and E. I. duPont de Nemours & Co. v. Finklea, 442 F. Supp. 821 (S.D.W.Va.1977), which upheld an agency's authority to view medical records needed in the public interest. The court also found that Westinghouse had not demonstrated that individually identifiable medical records would be ...