<DOC>
[DOCID: f:c-95-008.wais]
ASARCO, INC.
May 17, 1995
CENT 95-8-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
May 17, 1995
ASARCO, INC., : CONTEST PROCEEDINGS
Contestant :
: Docket No. CENT 95-8-RM
: Citation 4444361; 9/20/94
v. :
: Docket No. CENT 95-9-RM
SECRETARY OF LABOR, : Citation 4328815; 9/21/94
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
: Sweetwater Mine Respondent
: Mine I.D. 23-00458
:
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-122-DM
on behalf of :
DAVID HOPKINS, : Sweetwater Mine
Complainant : Mine I.D. 23-00458
:
v. :
:
ASARCO, INCORPORATED, :
Respondent :
ORDER DENYING, IN PART, ASARCO'S MOTION TO COMPEL
Asarco, Inc. filed a request for the production of
documents in these proceedings. In response, the Secretary
of Labor provided certain documents but refused to provide
others on the basis of the informant's privilege, the
deliberative process privilege, and the attorney-client
privilege. Subsequently, Asarco filed a motion to compel
production of three types of doc-uments: (1) statements of
miners made to MSHA investigators; (2) a special
investigation report of the discrimination complaint prepared
by Ms. Judy Peters, an MSHA employee; and (3) a case
analysis prepared by Ms. Peters. The Secretary opposed the
motion to compel. By order dated May 4, 1994, I ordered the
Secretary to provide, for my in camera inspection, a copy of
each contested document. There is no dispute that the
requested material is relevant to these proceedings. For the
reasons discussed below, Asarco's motion to compel is denied,
in part, and granted, in part.
I. Statements of Miners
During MSHA's investigation of Mr. Hopkins' discrimination
complaint, Ms. Judy Peters, an MSHA investigator, interviewed a
number of miners. During these interviews, she either tape-re-
corded the interview or took written statements. The taped in-
terviews were typed in question and answer format. These
interview transcripts and written statements (collectively
referred to as "statements") were forwarded to me for my review.
After reviewing each of the statements, I conclude that all but
one are protected by the informant's privilege.
The Commission has stressed the importance of the inform-
ant's privilege under the Mine Act. Bright Coal Co., 6 FMSHRC
2520 (November 1984). The Commission held that this privilege is
applicable to the furnishing of information to government offi-
cials concerning violations of the Mine Act. 6 FMSHRC at 2524.
It is the name of the informant, not the contents of the state-
ment, that is protected, unless disclosure of the contents would
tend to reveal the identity of an informant. Asarco, 12 FMSHRC
2548, 2554 (December 1990) ("Asarco I"), citing Roviaro v. United
States, 353 U.S. 53, 60 (1957). The Secretary bears the burden
of proving facts necessary to support the existence of the privi-
lege. Asarco I, 12 FMSHRC at 2553.
Each of the statements at issue in this case contains the name
of the informant making the statement. In addition, given the
detail contained in the statement, I find that disclosure of the
contents of each statement would tend to reveal the identity of
the informant. Finally, each statement contains the names of
other miners, many of whom are also informants. Accordingly, I
conclude that each statement is protected by the informant's
privilege. Redacting out names and identifying sentences or
paragraphs is not feasible because of the detailed nature of
the statements. It would not be possible for the Secretary to
provide Asarco with meaningful portions of the statements with-
out revealing the identity of one or more informants.
Because the informant's privilege is a qualified privilege,
I must perform a balancing test to determine if Asarco's need
for the statements is greater than the Secretary's need to
maintain the privilege to protect the public interest. Bright,
6 FMSHRC at 2526. The burden is on Asarco to prove facts
necessary to show that disclosure of the statements is necessary
to a fair determination of the case. Id. Factors to be
considered in conducting this balancing test include whether the
Secretary is in sole control of the requested material and
whether Asarco has other avenues available from which to obtain
the substantial equivalent of the requested information. Id.
In performing the balancing test in this case, the issue is
whether Asarco can get substantially the same information by
deposing those miners who have knowledge of the events leading
up to Mr. Hopkins' discharge. Asarco, 14 FMSHRC 1323, 1331
(August 1992)("Asarco II")
I conclude that Asarco could get substantially the same
information by interviewing or deposing miners at the
Sweetwater Mine who worked with Mr. Hopkins and with the
1311 High Scaling Rig that is the subject of these proceedings.
Those are the individuals with knowledge of the events that are
important to these cases and Asarco can get substantially the
same information by talking to those individuals.
Asarco maintains that it believes that it is "quite likely"
that some of the statements contain information that is favorable
to its position in these cases. Asarco states that such informa-
tion is essential for a fair determination of the issues. In
Bright, the Commission held that "an informer is entitled to
anonymity, regardless of the substance of the information he
furnishes." 6 FMSHRC at 2524. The "applicability of the informer's
privilege to the Mine Act does not rise or fall based on the
substance of a person's communication with government officials
concerning a violation of the law." 6 FMSHRC at 2525.
Accordingly, Asarco's contention is unfounded.
I conclude, however, that Asarco is entitled to a copy
of the statement made by Mr. Hopkins. This proceeding is
being brought by the Secretary on Mr. Hopkins' behalf.
There can be no doubt in anyone's mind that Mr. Hopkins is
an informant and that his identity as an informant is known to
Asarco because a discrimination complaint was filed on his
behalf. The Secretary would not file a discrimination
proceeding without interviewing the complainant.[1]
Accordingly, I conclude that the informant's privilege has
been waived with respect to Mr. Hopkins.
Asarco will be entitled to the names of all the Secretary's
witnesses two days before the trial. 29 C.F.R. � 2700.62; Asarco
II, 14 FMSHRC at 1331. At or about that time, Asarco may be able
to obtain the statement of any miner who will be called as a
wit- ness in order to refresh that witness's recollection or to
impeach his testimony. Asarco II, 14 FMSHRC at 1331. Asarco's
right to the statements of miner witnesses at the time of trial
is a separate and procedurally distinct issue from the discovery
issue presented here. Id. (citation omitted).
II. Special Investigation Report Prepared by Ms. Peters
The special investigation report ("report") prepared by
Ms. Peters consists of two parts: a summary of the interviews
and statements Ms. Peters took of miners and a conclusion that
Asarco violated section 105(c) of the Mine Act when it terminated
Mr. Hopkins. The report recommends that a complaint be filed on
his behalf. The report, which is in the form of a memorandum,
was prepared by Ms. Peters and is directed to Raymond C. Austin,
MSHA District Manager for the South Central District, through
Jimmie L. Jones, Supervisory Mine Safety and Health Specialist.
I find that this document is protected from disclosure by the
informant's privilege and the deliberative process privilege.
Most of the report is a summary of the statements of miners
described in section I, above. This summary also includes the
summary of statements made to Ms. Peters by a few management
employees. The definition of "miner" under the Mine Act includes
"any individual working in a ... mine." 30 U.S.C. � 802(g); 29
C.F.R. � 2700.2. Thus, the informant's privilege applies to
statements made to the government by both management and hourly
employees. For the reasons set forth in section I above, I
believe that these summaries are protected by the informant's
privilege. In addition, for the reasons discussed above,
Asarco's need for the statements is not as great as the
Secretary's need to maintain the privilege to protect the
public interest. Asarco has access to all of these individuals
and could simply depose or interview them.
The remainder of the report is protected by the deliberative
process privilege. This privilege protects communications
between subordinates and supervisors within the government that
are "antecedent to the adoption of an agency policy." Contests of
Respirable Dust Sample Alternation Citations, 14 FMSHRC 987, 992
(June 1992), quoting Jordan v. Dept. of Justice, 591 F.2d 753
(D.C. Cir. 1978). The communications must be "related to the
process by which policies are formulated." Id. The conclusion
and recommendation section easily fits within the deliberative
process privilege. This section of the report contains the
recommendation of Ms. Peters, a subordinate, to Mr. Austin, a
supervisor, that the agency pursue this case. It is not the
final agency decision.[2]
I also conclude that Asarco's need for the recommendation
section does not outweigh the Secretary's interest in keeping
it confidential. Ms. Peter's one page recommendation puts her
gloss on the interviews she conducted and states that the
information obtained during her investigation "indicates
that a violation of Section 105(c) occurred." It is simply
her opinion and, since this proceeding is de novo, it will
carry no weight. The Secretary's interest in keeping its
decision making process confidential far outweighs Asarco's
need for this section of the report.
III. Case Analysis
Counsel for the Secretary states that a case analysis
prepared by Ms. Peter does not exist. The only case analysis
she prepared is the report discussed in section II, above. The
Secretary provided for my in camera review, a two-page "case
analysis" prepared by an analyst in MSHA's Arlington, Virginia,
headquarters. As it does not contain any details, it appears
that it may be a transmittal memorandum for the report prepared
by Ms. Peters. In any event, like the report, it is protected
by the deliberative process privilege. It is a memorandum
prepared by a subordinate to a supervisor that recommends that a
discrimination complaint be filed against Asarco on behalf of
Mr. Hopkins. The Secretary's interest in keeping its decision-
making process confidential outweighs Asarco's need for this
document.
ORDER
Accordingly, Asarco's motion to compel is DENIED, except
with respect to the transcript of the taped interview of Mr.
Hopkins taken on September 19, 1994. The Secretary is ORDERED
to provide counsel for Asarco with a copy of this transcript
within ten days of the date of this order. The Secretary
should redact the names of other informants that are contained
in the transcript and, to the extent necessary, those portions
of the transcript that would tend to reveal the identity of an
informant.
Richard W. Manning
Administrative Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716
Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037
/rwm
**FOOTNOTES**
My holding is consistent with the Commission's decision in
Secretary on behalf of Gregory et. al. v. Thunder Basin Coal Co.,
15 FMSHRC 2228 (November 1993). The Commission held that the
informant's privilege is not waived when an unfair labor practice
charge brought by the United Mine Workers Union names a number of
miners in the complaint. 15 FMSHRC at 2235-36. The inclusion of
a particular miner in the complaint "is not tanta- mount to
disclosure of [the miner] as an informant." 15 FMSHRC at 2236.
The unfair labor practice action could have been brought without
obtaining information from the miner in question. In the instant
case, however, there can be no dispute that Mr. Hopkins is an
informer.
The portion of the report that summarizes the statements of
miners also summarizes interviews with Michael R. Roderman, an
MSHA inspector, and Michael P. Sheridan, an MSHA engineer. I
find that these summaries are protected by this privilege because
they reflect the deliberative process and are not purely factual
in nature. I believe that report must be viewed as a whole and
that the summary of Ms. Peters' interviews of MSHA officials is
part of the decision making process rather than merely a factual
predicate for the decision to bring these cases. See, Respirable
Dust Cases, 14 FMSHRC at 992-93.