FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                601 NEW JERSEY AVENUE, Suite 9500
                     WASHINGTON, D.C.  20001

                         October 23, 2002

SECRETARY OF LABOR,           :    DISCRIMINATION PROCEEDING
     MINE SAFETY AND HEALTH        :                 
     ADMINISTRATION (MSHA)         :
      on behalf of Billy R. Begley,          :    Docket No. KENT 2002-195-D
               Complainant               :   PIKE CD 2001-08
          v.                  :
                              :    Red Star No. 1 Mine
COASTAL COAL CO., LLC.,       :    Mine ID 15-18306
               Respondent          :

           ORDER DENYING RESPONDENT'S MOTION TO COMPEL
                               AND
          DIRECTING THAT DOCUMENTS BE PLACED UNDER SEAL

     Respondent has moved to compel production of portions of the MSHA investigative report,
notes of witness interviews and memoranda of witness interviews that were not produced in response
to its discovery requests.  The Secretary asserted that the documents, and portions of documents
withheld were protected from disclosure by the work product, investigative file, deliberative process
and informant's privileges.  The Secretary opposed the motion.  A telephonic discussion was held on
October 17, 2002, which clarified the issues.  

     The Secretary, in essence, had waived the work product privilege.  She produced unredacted
copies of memoranda of interviews of Respondent's management employees, the miner-complainant's
statements, and most of the investigative report.  The report consists almost entirely of essentially
verbatim recitals of memoranda of witness interviews.  The portions of the investigative report that were
withheld consisted of information tending to identify miner informants, which was withheld on a claim of
the informant's privilege, and the evaluation and recommendation of the MSHA investigator, which was
withheld on a claim of the deliberative process privilege.  The informant's privilege protects from
disclosure the identity of the informant, not the contents of a statement except those portions that would
tend to identify the informant.  See Sec'y on behalf of Logan v. Bright Coal Co., 6 FMSHRC 2520
(Nov. 1984).  The deliberative process privilege protects from disclosure pre-decisional deliberative
information.  See In Re: Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC
987 (June 1992).  Neither privilege protects factual information that can be segregated from the
protected information.  

     As stated in Respondent's motion and clarified by counsel during the telephonic discussion,
Respondent does not seek to compel production of material that is legitimately protected by either
privilege.  Respondent seeks only factual information related by witnesses or contained in the
investigative report.  The dispute has condensed down to a question of whether the Secretary's
redactions to the investigative report were properly made.  

     In order to assure that the Secretary had withheld only information protected by the respective
privileges, I directed that unredacted copies of the investigative report and miner witness statements be
submitted for in camera review.  The Secretary promptly responded to the directive and submitted
documents contained in three attachments.  Attachment "A" consisted of the Secretary's Supplemental
Response to Respondent's First Request for Production of Documents, including a redacted copy of
the investigative report and unredacted copies of memoranda of interviews of management employees. 
Attachment "B" consisted of an unredacted copy of the investigative report.  Attachment "C" consisted
of unredacted memoranda of interviews of four miner witnesses.  

     I have reviewed the documents submitted and am satisfied that the Secretary's redactions to
the investigative report were entirely proper.  The memoranda of interviews of the miner witnesses were
included, virtually verbatim, in the report, and the only portions withheld were those identifying, or
tending to identify, the miner informants.  The only other redactions consisted of certain organizational
information, and the evaluation and recommendation of the investigator.  

                              ORDER

     Respondent's motion to compel is DENIED.  Attachments "B" and "C" to the Secretary of
Labor's Response to the Bench Order on the Respondent's Motion to Compel Discovery shall be
FILED UNDER SEAL and shall not be disclosed except on order of the Commission or a
reviewing court.  




                              Michael E. Zielinski     
                              Administrative Law Judge 

Distribution:

Brian Dougherty, Esq. Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215 

Julia K. Shreve, Esq., Jackson & Kelly, PLLC, P.O. Box 553, Charleston, WV 25322 

Billy R. Begley, 2467 Right Fork Road, Viper, KY 41774 

/mh