FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

September 21, 2011

                                                                                                                                     :

ORDER GRANTING IN PART

RESPONDENT’S MOTION TO COMPEL

            These cases are before me upon Petitions for Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977 (“the Act”) 30 U.S.C. § 815(d). On August 15, 2011 Respondent filed a Motion to Compel asserting that the Secretary’s refusal to produce certain documents sought in discovery is based on an improper invocation of the various asserted privileges. The Secretary filed her response on September 19, 2011 and, in a subsequent conference call, the Secretary was directed to produce the documents at issue for in camera review by the undersigned judge. Those documents were produced on September 20, 2011. For the reasons that follow, the Motion to Compel is granted in part. Additional information is required in order to rule further on the motion.

The Special Assessment Review Forms

            The Secretary maintains that the Special Assessment Review Forms are protected from disclosure by the deliberative process privilege. In In re: Contests Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 990-93 (June 1992), the Commission described the scope of the deliberative process privilege as follows:

This privilege protects the consultative functions of government by maintaining the confidentiality of “advisory opinions, recommendation and deliberations comprising parts of a process by which governmental decisions and policies are formulated. The privilege attaches to inter-and intragency [sic] communications that are part of the deliberative process preceding the adoption and promulgation of an agency policy.

            Id at 992 (quoting Jordan v. U.S. Dep’t of Justice, 591 F. 2d 753, 772 (D.C. Cir. 1978)).

            While the documents sought to be protected must ordinarily be pre-decisional, Id at 992, a document that is pre-decisional at the time of its creation can lose that status if it is adopted formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public. Coastal States Gas Corp., v. Dep’t of Energy, 617 F.2d 854 at 866 (D.C. Cir. 1980); Sec’y of Labor v. Webster County Coal, LLC, 2004 WL 904753, at *1 (FMSHRC February 23, 2004) (ALJ). In N.L.R.B.v. Sears, Roebuck & Company, 421 U.S. 132, 151-52 (1975), the Supreme Court noted when the position is adopted by the agency, “the reasoning becomes that of the agency and becomes its responsibility to defend.” 421 U.S. at 161. The Court further recognized that the purpose of the deliberative process privilege of encouraging frank communication in order to effectuate better decisions is served because, “agency employees will generally be encouraged rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency.” Id.

            Within this framework of law, I therefore find that the documents identified as Special Assessment Review Forms, submitted for my in camera review are all outside the ambit of the deliberative process privilege because the positions taken in the documents were adopted as the agency’s position regarding the charging documents at issue.

            I further note that, in particular, the documents identified as Special Assessment Review Forms contain the inspector’s factual basis for his recommendations to the Secretary. The Commission has recognized that “purely factual material that does not expose an agency’s decision making process does not come within the ambit of privilege.” Dust cases, 14 FMSHRC at 993. Moreover, 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 the deliberative process privilege is thereby lost. CDK Contracting Co., v. Sec’y of Labor, 25 FMSHRC 88, 90 (Feb. 2003) (ALJ), Aggregate Industries v. Sec’y, 25 FMSHRC 88,90 (Feb. 2003) (ALJ).

            Accordingly, while I am today returning to counsel for the Secretary by Federal Express overnight delivery all of the documents submitted to me for in camera review, I direct that copies of all of the documents identified as Special Assessment Review Forms be provided to Respondent forthwith.

The Memoranda

            The Secretary has further provided for in camera review eight memoranda she claims are protected from disclosure under the attorney-client, work product and deliberative process privileges . While it appears that the former two privileges may apply to these documents, additional evidence is necessary before a definitive ruling can be made i.e. whether the documents were prepared in anticipation of litigation or trial for purposes of the work product privilege and whether the criteria for the attorney-client privilege has been met, namely: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.” See Hawkins v. Stables, 148 F.3d 379, 383 (4^th Cir. 1998)(citing U.S. v. Jones, 696 F.2d 1069, 1072 (4^th Cir. 1982).

            Under the circumstances, I cannot now make findings on the privileges claimed by the Secretary to bar disclosure of the noted memoranda. The Secretary may provide the additional evidence by affidavit to support her claimed privileges but must do so on or before September 26, 2011.

                                                                        Gary Melick

                                                                        Administrative Law Judge

                                                                        202-434-9977

Distribution:(By Certified Mail)

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 8^th Floor, 230 S. Dearborn Street, Chicago, IL 60604

Travis Gosselin, Esq., Office of the Solicitor, U.S. Department of Labor, 8^th Floor, 230 S. Dearborn Street, Chicago, IL 60604

Jason W. Hardin and Mark E. Kittrell, Esq., Fabian & Clendenin, 215 South State Street, Suite 1200, Salt Lake City, UT 84111-2323

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