FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

November 9, 2012

ORDER DENYING RESPONDENT’S MOTION TO COMPEL

            These cases are before me upon three Notices of Contest and related Petitions for Assessment of Civil Penalties, under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Respondent filed a Motion to Compel Discovery and a Motion for Extension of Time to File Prehearing Reports. In its Motion to Compel Discovery, Respondent asks that the Secretary be required to produce, where applicable, all Special Assessment Review (SAR) forms for the citations and orders at issue in these matters. Absent such production, Respondent asks that the Secretary’s request for specially-assessed penalties be stricken.

            During discovery, the Secretary provided Respondent with a privilege log, withholding, inter alia, the SAR forms and claiming deliberative process privilege. The sufficiency of that privilege log is not at issue. In response to the motion to compel, the Secretary filed an Opposition arguing that the SAR forms are not relevant discoverable matter, are fully protected by the deliberative process privilege, and are not essential to a fair determination in this proceeding.

            The Commission has not decided whether SAR forms are discoverable. This is likely because discovery issues are not subject to interlocutory review under Commission precedent and may become moot after a case is settled or litigated. See Asarco, Inc., 14 FMSHRC 1323, 1328 (Aug. 1992) (“[U]nless there is a ‘manifest abuse of discretion’ on the part of a judge, discovery orders are not ordinarily subject to interlocutory appellate review”).

            Commission judges are split on whether the SAR forms are discoverable. Pocahontas Coal Co., LLC, 34 FMSHRC 903 (Apr. 2012) (ALJ Feldman) (motion to compel SAR forms denied because Secretary’s special assessment criteria is not relevant given de novo authority of Commission to assess civil penalties, however, personal observations of issuing inspector which may have served as basis for special assessment is discoverable through depositions); Hidden Splendor Resources, Inc., 33 FMSHRC 2345 (Sept. 2011) (ALJ Rae) (motion to compel denied as SAR forms protected from disclosure by work product and deliberative process privileges and irrelevant to de novo determination of assessed penalty); Humphrey Enterprises, Inc., 2011 WL 7463292 (Dec. 2010) (ALJ Paez) (motion to compel denied as entire form protected by deliberative process and not essential to a fair determination); but see Consolidation Coal Co., 34 FMSHRC ___, slip op., No. WEVA 2011-940 (July 6, 2012) (ALJ Barber) (motion to compel granted since court must explain significant departures from penalties proposed; operator has right to know why special assessments were made; forms explain inspector’s recommendation by reciting facts and whether supervisor, assistant district manager and district manager agree with inspector’s factual assessment; and forms contain facts already known, with no meaningful discussion of pros and cons for special assessments, and no exegesis of policy reasons behind Secretary’s choices); Big Ridge Inc., Unpublished Order, No. LAKE 2011-716 (Mar. 16, 2012) (ALJ Zielinski) (motion to compel SAR forms granted as to all factual portion of forms in boxes 1-10, including inspector’s recommendation for special assessment in box 10, but allowing Secretary to redact comments of reviewing supervisor, assistant district manager, and district manager in boxes 11-13, respectively); American Coal Company, 33 FMSHRC 2352 (Sept. 2011) (ALJ Melick) (motion to compel denied as to SAR forms; deliberative process privilege found to be inapplicable because positions taken in the documents were adopted as the agency’s position regarding the “charging documents” at issue; forms contain inspector’s factual basis for recommendations, and “upon the Secretary’s acceptance by issuing citations, the inspector’s recommendations and those of his supervisors become the agency’s position and any claim to deliberative process is thereby lost,” citing CDK Contracting Co., 25 FMSHRC 88, 90 (Feb. 2003) (ALJ Manning) (motion to compel SAR forms granted, even though forms were found irrelevant and inadmissible for penalty assessment purposes, and not protected by deliberative process privilege on which Secretary had taken inconsistent position in past cases, because forms had marginal relevance to high negligence and unwarrantable failure determinations); Aggregate Industries, West Central Region, Inc., 25 FMSHRC 88, 89 (Feb. 2003) (ALJ Manning) (same).

            Having reviewed my colleagues’ various opinions and the sampling of SAR forms turned over by the Secretary in camera, I find myself guided by Judge Paez’s well-reasoned and thoroughly researched decision in Humphrey Enterprises, Inc., supra, 2011 WL 7463292 (Dec. 2010) (ALJ Paez). I need not repeat that scholarly analysis here. In short, I conclude that boxes 10-13 of the SARs forms are protected by the deliberative process privilege because they contain the inspector’s recommendation and his supervisor’s, assistant district manager’s, and district manager’s review as to whether a violation is flagrant and/or warrants a special assessment during the pendency of an open case that may be settled or litigated. The documents are part of a pre-decisional process that leads to a final agency decision as to whether a violation should be deemed flagrant and/or be specially assessed. The SAR forms travel from a subordinate issuing inspector, who makes a factual or strategic advice-giving recommendation, through superior officials, who engage, at times rather perfunctorily, in the give-and-take of the deliberative process, and either agree or disagree with the recommendation for the same or independent reasons. This is the essence of the deliberative process, a well-established privilege, imbedded in American jurisprudence. See generally Coastal States Gas Corp. v. Dep’t of Energy, 617 F. 2d 854, 866-870 (D.C. Cir. 1980).

            Respondent cites Coastal States for the proposition that “even if the document is pre-decisional at the time it is prepared, it can lose that status if it is adopted formally or informally, as the agency position.” R. Mot. at 6, citing 617 F.2d at 866. The Court, however, cited no authority for this dicta. Moreover, the Commission has rejected the conclusion that documents concerning completed matters automatically fall outside the privilege. See In re: Contests of Respirable Dust Sample Alteration Citations (Dust Cases), 14 FMSHRC 987, 994 (June 1992). Here, the litigation is not completed, and the Narrative Findings for a Special Assessment attached to the Petitions do not contain the same deliberative material that is set forth in boxes 10-13 of the SAR forms. That material reflects advisory opinions, recommendations, and deliberations comprising the process by which MSHA’s special assessment and/or flagrant decisions are formulated. Cf. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975).

            Accordingly, I conclude that boxes 10-13 of the SAR forms are protected by the deliberative process privilege, a qualified privilege that is subject to the balancing test set forth in Bright Coal Company, 6 FMSHRC 2520 (Nov. 1984), governing the informant's privilege. Dust Cases, 14 FMSHRC at 994. In other words, if “disclosure is essential to the fair determination of a case, the privilege must yield.” Bright Coal Co., 6 FMSHRC at 2523 (citing Roviaro v. United States, 353 U.S. 53, 60-61 (1957)). This analysis turns on the particular circumstances of each case, including whether the Secretary is in sole control of the information, the nature of the violation, possible defenses, and the impact of the information. Dust Cases, 14 FMSHRC at 988; Bright Coal Co., 6 FMSHRC at 2526. The party seeking disclosure, Respondent here, has the burden of proving the facts necessary to establish that the information sought is essential to a fair determination of the case. Bright Coal Co., 6 FMSHRC at 2526. Respondent has not met its burden as the Motion to Compel is silent on the appropriate analysis.

            Concededly, boxes 1-9 of the SAR forms contain basic facts about the case. These boxes set forth the following: “MSHA District Office, Field Office, Mine ID/Contractor ID, Mine Name, Operator Name, Citation/Order Number, Citation/Order Issue Date, and Yes or No boxes to be checked in response to queries, “Accident Related Violation?” and “Operator Notified of Special Assessment?”. Normally, Respondent is entitled to such factual information that does not expose an agency’s decision making process and does not come within the ambit of the privilege. Dust Cases, supra, 14 FMSHRC at 993 (citing Exxon v. Doe, 585 F. Supp. 690, 698 (D.D.C. 1983)). Respondent already has this basic factual information, however, and it would be unduly burdensome and wasteful to require the Secretary to turn over this information after redacting boxes 1-9. Although the inspector’s recommendation for special assessment in box 10 may, at times, contain a significant amount of factual information, that information directly relates to the task of determining and recommending whether a special assessment or flagrant assessment is warranted. Consequently, because this information guides the Secretary's deliberative decision-making process, it must be privileged as well. Cf. Consolidation Coal, 19 FMSHRC 1239, 1249-50 (July 1997) (determining that factual material was not privileged because it did not play a role in agency's decision-making process).

            For the reasons set forth above, Respondent’s Motion to Compel Discovery is DENIED. Respondent’s request that the specially-assessed penalties be stricken is also DENIED.

                                                                        /s/ Thomas P. McCarthy

                                                                        Thomas P. McCarthy

                                                                        Administrative Law Judge

Distribution:

Letha A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5710

Arthur Wolfson, Esq., Jackson Kelly, PLLC, 3 Gateway Center, Suite 1500, 401 Liberty Ave., Pittsburgh, PA 15222