<DOC>
[DOCID: f:ct200096o1.wais]
June 27, 2000
THE COTEAU PROPERTIES CO.
CENT 2000-96-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 27, 2000
SECRETARY OF LABOR : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2000-96-D
ON BEHALF OF ROYAL SARGENT, : DENV CD 99-03
Complainant :
v. :
:
THE COTEAU PROPERTIES CO., : Freedom Mine
Respondent : Mine ID 32-00595
ORDER DENYING MOTION TO COMPEL, IN PART, AND
CONDITIONALLY GRANTING MOTION TO COMPEL, IN PART
This case is before me on an amended complaint filed by the
Secretary of Labor on behalf of Royal Sargent, alleging that
Respondent, The Coteau Properties Co, had discriminated against him
in violation of section 105(c) (1) of the Federal Mine Safety and
Health Act of 1977 (the "Act"), 30 U.S.C. � 815(c)(1). Respondent
has moved to compel production of certain documents, to which the
Secretary has asserted claims of privilege, and responses to two
interrogatories that the Secretary has objected to on grounds of
relevance and privilege. For the reasons set forth below, the
motion is denied, in part, and granted, in part. However, before
ordering production, the Secretary is afforded an opportunity to
supply evidence demonstrating the applicability of privileges with
respect to certain withheld documents. The evidence may consist of
the documents themselves and/or an affidavit and may be submitted
in camera to the extent necessary to preserve a privilege.
In response to discovery requests, the Secretary interposed
objections on grounds of privilege to some twenty-nine documents that
were later identified in a "Privilege Log." The privileges asserted
were the deliberative process, investigative and informant's
privileges. Upon further review, eight of those documents were supplied
to Respondent. The Secretary also objected to two interrogatories on
grounds of relevance and privilege, although the deliberative process
and investigative privileges are no longer asserted. This Order will
first address the documents, which will be discussed in two groups,
"confidential employee interview statements" and the "investigative
report package."
Confidential Employee Interview Statements
The Secretary claimed the informant's privilege and declined to
produce sixteen witness statements described as "confidential employee
interview statements." Respondent has moved to compel production of
those documents. The Commission has recognized the importance of the
informant's privilege in effectuating the purposes of the Act. Secretary
obo Logan v. Bright Coal Co., Inc., 6 FMSHRC 2520 (Nov. 1984). It is
the identity of the informant that is protected by the privilege, not
the contents of a statement, except for those portions of the content
that would tend to identify an informant. ASARCO, Inc., 12 FMSHRC 2548,
2553-54 (Dec. 1990) (ASARCO I). It is the Secretary's burden to establish
that the privilege applies. Id. Because the privilege is qualified, a
party may seek to overcome it by demonstrating that the information is
necessary for a fair determination of the case and that its need for the
information outweighs the Secretary's need to maintain the privilege.
Here, Respondent challenges only application of the privilege and does
not seek any information to which the privilege properly applies.
The Secretary asserts, in opposition to the motion, that:
The contents of these statements, while factual in
nature, are so intertwined with the identity of the
employee that release of the statement would undoubtedly
identify the employee. In focusing on the allegations
set forth by the complainant in his complaint, MSHA
interviewed a select number of employees at Respondent's
mine site. The ensuing interviews contain numerous
references to information that is specific to certain
employees, such as job titles, individual duties and
responsibilities, shift assignments, supervisors,
personnel actions and, in some cases, the identity of
other informants. * * * It is simply not possible for
the Secretary to provide Respondent with meaningful
portions of the statements without revealing the
identity of one or more informants.[1]
As the Commission observed in ASARCO, Inc., 14 FMSHRC 1323, 1329
(August 1992) (ASARCO II):
It is the judge, not the Secretary, who must
determine whether the privilege obtains with respect
to a particular document or group of documents and he
must be provided with evidence sufficient to make
such a determination. In this case, the judge was
required to determine whether the statement, which did
not contain the name of an informant, would tend to
reveal the identity of the informant. Such an
analysis may not be possible unless the party invoking
the privilege provides the judge with facts that explain
how disclosure of the subject material would tend to
reveal that informant's identity. In general, a "bald
assertion of privilege is insufficient . . . since a
trial court must be provided with sufficient information
so as to rule on the privilege claim." 4 J. Moore, J.
Lucas & G. Grotheer, Moore's Federal Practice � 26.60[1]
(2d ed. 1991). * * *
While the Secretary's argument may go somewhat beyond a bald assertion
of the privilege, it falls far short of presenting factual evidence from
which application of the privilege can be determined, aside from information
directly identifying an informant, e.g. name, address, etc. Several of the
statements withheld are quite lengthy. The Secretary argues, for example,
that all parts of twelve and sixteen page statements that are admittedly
"factual in nature" are so intertwined with the identity of the informant
as to be covered by the privilege. Information, such as, job title and
duties and responsibilities may be privileged if unique to the informant,
or to such a small group of persons that the informant would tend to be
identified. Without competent evidence establishing that the entire
statement consists of such information and that it would disclose an
informant's identity, however, the Secretary clearly has not satisfied her
burden. Portions of a statement that disclose the identity of other
informants would also be privileged. However, if a statement identifies
other individuals who may have knowledge of certain matters, the names of
such individuals would not be privileged, solely because they may also
have been interviewed in conjunction with the investigation.
Because the Secretary has not satisfied her burden of establishing
that the entirety of each statement is covered by the privilege, the
motion to compel as to the statements is conditionally granted. Before
ordering the Secretary to produce the statements, with only directly
identifying information redacted, however, the Secretary will be given
an opportunity to provide evidence that any other portion of each of the
withheld statements is covered by the privilege. The Secretary may
submit copies of the statements for in camera review and/or may submit
an affidavit by a person with knowledge of the facts relied upon. If
the contents of an affidavit would tend to disclose privileged
information, it too could be submitted in camera. See, ASARCO II,
14 FMSHRC at 1330, 1333. The Secretary's representatives will determine
the precise nature of any evidence to be submitted in support of the
privilege claim. However, because of the volume of material involved,
it would appear difficult to sustain the burden as to the entirety
of each of the statements without submitting both copies of the statements
and an affidavit.
The Investigative Report Package
The other documents at issue consist of a 41 page "Special
Investigation Report" and related documents; a summary analysis; a list
of exhibits; a list of persons interviewed; and, the assignment control
worksheet. In addition to the informant's privilege, the deliberative
process and investigative privileges were variously interposed as
objections to the production of these documents.[2]
The deliberative process privilege was first discussed by the
Commission in In Re: Contests of Respirable Dust Sample Alteration Citations,
14 FMSHRC 987, 990-93 (June 1992). Following a brief review of the origin of
the privilege the Commission observed:
The breadth of the privilege is described by the court
in Jordan v. U.S. Dept. of Justice, 591 F.2d 753 [772] (D.C.
Cir. 1978):
This privilege protects the 'consultative functions'
of government by maintaining the confidentiality of
'advisory opinions, recommendations and deliberations
comprising part of the process by which governmental
decisions and policies are formulated' (citations
omitted). The privilege attaches to inter- and
intra-agency communications that are part of the
deliberative process preceding the adoption and
promulgation of an agency policy.
To be covered by the privilege, the material must be both "pre-
decisional" and "deliberative." Id. Purely factual material that does
not expose an agency's decision making process is not covered by the
privilege, unless it is so inextricably intertwined with deliberative
material that its disclosure would compromise the confidentiality of
the deliberative information that is entitled to protection. It is
the Secretary's burden to prove that the privilege applies to material
it seeks to protect from disclosure. Id. 14 FMSHRC at p. 993.
Consolidation Coal Co., 19 FMSHRC 1239, 1246-47 (July 1997). A party
seeking to overcome the privilege has the burden of demonstrating that
its need for the information outweighs the governmental interest in
protecting it from disclosure.
Respondent contends that the privilege applies only to writings
directly involved in the formulation of agency "policy" -- that the
decisions made with respect to a discrimination complaint involve only
"the application of already-established law and policy to facts"[3] and
are not covered by the deliberative process privilege. I reject that
contention and hold that the Secretary's decision making process, by
which a determination is made whether or not to initiate a discrimination
proceeding under the Act, is the type of governmental decision to
which the deliberative process privilege applies. See, In Re: Contests
of Respirable Dust Sample Alteration Citations, 14 FMSHRC at 993.
The Secretary has represented, preliminarily, that none of the
documents associated with the report contains factual information that
is not also contained in the report.[4] This representation should
be confirmed, by affidavit, in response to this Order. Because it
appears that there is no additional factual information contained in
the other documents, the major portions of which clearly appear to be
covered by the informant's and deliberative process privileges, the
motion as to those documents is denied, with one exception.[5] The
exhibit list identifies all exhibits in the investigative file, not
just those that may have been referenced in the report. As a
consequence, it is possible that the list may include items in addition
to those at issue in this motion that have not already been produced.
The Secretary is directed to provide, for in camera review, a list of
any such items along with any evidence that the existence of such an
item on the exhibit list is protected from disclosure.
The Secretary has described the Special Investigative Report as
consisting of an introduction, a summary of witness statements and a
conclusion. The conclusion section appears likely to be protected by
the deliberative process privilege, in that it would normally consist
of the recommendations, analysis and conclusions of the investigators.
However, the factual portions of the report, the summary of witness
statements and other information, would appear to be information to
which Respondent is entitled, at least to the extent that it does not
disclose the identity of an informant. Aside from the portion of the
report consisting solely of the investigators' analysis, recommendations
and conclusions, the Secretary has not satisfied her burden of
demonstrating the applicability of the privilege and the motion, as to
the report, is conditionally granted.
Before ordering the Secretary to produce the report, with only the
investigators' analysis, recommendations and conclusions redacted, however,
the Secretary will be given an opportunity to provide evidence that any
other portion of the report is covered by the privilege. The Secretary
may submit a copy of the report for in camera review and/or may submit an
appropriate affidavit.
The Interrogatories
Interrogatory numbered 7 consisted of the following request:
Describe the complete basis for the Secretary's determination,
communicated to Royal Sargent and Coteau in the letter from
Sandra L. Yamamoto, dated December 30, 1998 * * * , "that a
violation of Section 105(c) has not occurred."
The Secretary objected to the interrogatory on grounds of relevance
and deliberative process, investigative and informant's privileges. The
deliberative process and investigative privileges are no longer asserted.
Interrogatory numbered 16 read:
Identify each person * * * who participated on behalf of
the Secretary in the determination, after the reopening
of the investigation, that a violation of Section 105(c) of the
Mine Act had occurred. If the determination that discrimination
had occurred is claimed to ultimately have been made by one
person, specifically identify that person.
The secretary objected on grounds of relevance and deliberative
process privilege. Only relevance is now asserted as an objection.
The fact that the Secretary initially concluded that no discrimination
had occurred and later reached an opposite conclusion, as well as the
particular rational for each conclusion and the identities of individuals
who participated in the latter decision are not relevant. However, factual
information, including potentially exculpatory facts known to the Secretary
at the time of the initial decision, would certainly be relevant and
cannot be withheld unless protected by the informant's privilege.
It is likely that all factual information known to the Secretary at
that point in the process is included in the investigative report and the
witness statements and/or in the information already produced in response
to discovery. As noted above, the statements must be produced except to
the extent that they are protected by the informant's privilege and factual
information contained in the report must be disclosed, except to the
extent that it is protected by the informant's or deliberative process
privileges.
If the Secretary can establish, by affidavit, that the facts known at
the time that the initial determination was made are included in the report
and statements, Respondent will have received all factual information to
which it is entitled. Accordingly, the motion to compel responses to
interrogatories numbered 7 and 16 is denied, at this time, subject to a
demonstration that pertinent factual information responsive to interrogatory
numbered 7 is included in the report and statements.
Conclusion and Order
Respondent is generally entitled to relevant factual information in
possession of the Secretary that has properly been requested through
discovery. The informant's privilege may bar access to factual
information, but only to the extent that it identifies or tends to
identify a person who has provided information to the Secretary. The
deliberative process privilege protects from disclosure information
regarding the Secretary's pre-decisional deliberations, information
that is of marginal, if any, relevance and unlikely to be factual in
nature. It is possible that some factual information may properly be
withheld pursuant to the deliberative process privilege, if it would
disclose privileged information, however, at this stage of the
litigation it is unclear whether any of the materials at issue fall
within that category. The motion to compel as to the Special Investigative
Report, a portion of the exhibit list and the Confidential Employee
Interview Statements is conditionally granted. On or before Friday,
July 7, 2000, the Secretary may submit evidence establishing the
applicability of the informant's and deliberative process privileges to
any portions of the report, exhibit list and statements that the Secretary
continues to object to producing. That evidence should also address
whether there are additional facts known to the Secretary at the
time of the initial decision that are not included in the report and
statements. On consideration of any such evidence, a further order
will be issued with respect to those documents.
As to the remainder of the documents and interrogatories numbered
7 and 16, the motion is denied.
Michael E. Zielinski
Administrative Law Judge
Distribution:
Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Facsimile and Certified Mail)
James A. Lastowka, Esq., McDermott, Will & Emery, 600 13th
Street, N.W., Washington,
D.C. 20006-3096 (Facsimile and Certified Mail)
/mh
[1] Opposition at p. 5.
[2] Respondent contends that the deliberative process
and investigative privileges have not been properly invoked. The
Secretary submitted an affidavit by Marvin W. Nichols,
Administrator for Coal Mine Safety and Health, Mine Safety and
Health Administration, U.S. Department of Labor, invoking
privileges with respect to the five documents at issue. I find
that the affidavit is sufficient to invoke the claimed
privileges. See, In Re: Contests of Respirable Dust Sample
Alteration Citations, 14 FMSHRC 987, 999-1001 (June 1992).
[3] Motion to Compel, at p. 6.
[4] A conference call was held with the parties'
representatives on June 26, 2000.
[5] The Secretary has also interposed an objection on
grounds of "investigatory files privilege" to production of the
report, the summary and the list of exhibits. Respondent argues
that the investigative privilege is no broader than, and is
subject to the same limitations as, the deliberative process
privilege. As to the documents at issue here, I agree with
Respondent. The issues raised by the motion to compel will be
decided upon application of the deliberative process and
informant's privileges.