<DOC>
[DOCID: f:consol5.wais]
CONSOLIDATION COAL COMPANY
July 10, 1997
WEVA 93-146-B
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
July 10, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 93-146-B
:
CONSOLIDATION COAL COMPANY :
BEFORE: Marks, Riley and Verheggen, Commissioners[1]
DECISION
BY: Riley and Verheggen, Commissioners
This interlocutory review of consolidated civil penalty and
contest proceedings, arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine Act"),
concerns a discovery order dated June 6, 1996, by Administrative
Law Judge Gary Melick requiring the Secretary of Labor to provide
Consolidation Coal Company ("Consol") with copies of certain
documents over which the Secretary has asserted the work-product
privilege and copies of other documents over which the Secretary
has asserted the deliberative process privilege. 18 FMSHRC 1131
(June 1996) (ALJ). In an order dated June 20, 1996, the judge
denied the Secretary's motion for stay and certification for
interlocutory review of the June 6 order. The Commission granted
the Secretary's Petition for Interlocutory Review and stayed the
judge's order pending the Commission's review. For the reasons
that follow, we reverse the judge's order requiring the Secretary
to produce the documents we find to be protected by the work-
product privilege, affirm the judge's order requiring production
of those documents the Secretary alleges are protected by the
deliberative process privilege, and remand this matter for
further proceedings.
**FOOTNOTES**
[1]: Chairman Jordan recused herself in this matter and took
no part in its consideration. Pursuant to section 113(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 823(c),
this panel of three Commissioners has been designated to exercise
the powers of the Commission.
I.
Factual and Procedural Background
This case arises out of an explosion at Consol's Blacksville
No. 1 mine in Monongalia County, West Virginia, on March 19,
1992, which resulted in the deaths of a Consol employee and three
employees of contractor M. A. Heston, Inc. Civil penalty
proceedings, based on citations and orders alleging violations of
various ventilation standards, were initiated by the Secretary on
March 9, 1993, but were thereafter stayed because of a related
criminal investigation. 18 FMSHRC at 1131. After that
investigation was concluded, hearings eventually took place in
several related cases, but the instant matter was continued. Id.
On February 22, 1996, Consol moved, pursuant to Commission
Procedural Rule 59, 29 C.F.R. � 2700.59, for an order compelling
discovery. Id. When disputes over two of the four categories of
information requested in that motion were not resolved by the
parties, the judge issued his order which is the subject of the
Secretary's interlocutory appeal.
The first documents at issue are five memoranda prepared by
Mine Safety and Health Administration ("MSHA") special
investigator George Bowman ("the Bowman memoranda"). The Bowman
memoranda consist of three summaries of statements that were the
product of interviews conducted earlier by the MSHA accident
investigation team, and two summaries of interviews conducted by
special investigator Bowman of people who are not Consol
employees. S. Resp. & Objection to Consol's Second & Third Req.
for Produc., Attach. A, at 4 n.1. According to the Secretary,
each of five individuals who are the subject of the Bowman
memoranda "also provided testimony to MSHA's accident
investigation team in the presence of Consol's counsel and
representatives. These statements have been provided to Consol."
S. Br. at 13 n.11.
The second set of documents at issue was generated in
connection with MSHA's internal review of its actions at the
Blacksville No. 1 mine around the time of the explosion. That
review resulted in the issuance of a public document entitled
"Internal Review of MSHA's Actions at the Blacksville No. 1 Mine,
Consolidation Coal Company, Monongalia County, West Virginia,"
dated August 17, 1993 ("Internal Review Report"). The stated
purpose of the MSHA internal review was "to evaluate MSHA's
actions at the Blacksville No. 1 Mine and to make recommendations
for improvements where appropriate." Id. at 2. Consol requested
the judge to rule on various privilege claims the Secretary had
made with respect to 55 files of documents prepared, used, or
reviewed in connection with the preparation of the Internal
Review Report. 18 FMSHRC at 1134.
II.
The Bowman Memoranda
A. Judge's Decision
After refusing to produce the Bowman memoranda on the ground
that they are protected from discovery by the attorney work-
product privilege, the Secretary provided the judge with a copy
of each of the Bowman memoranda for in camera inspection. 18
FMSHRC at 1132. The judge found that the memoranda "contain only
the reported statements of the interviewees and do not contain
any mental impressions, conclusions, opinions or legal theories
of an attorney or other representative of a party concerning the
litigation." Id. The judge did not directly decide whether the
Bowman memoranda are eligible for protection as work product.
Instead, he based his order requiring the Secretary to produce
the documents on Consol's asserted need for the Bowman memoranda
"to compare present recollections against prior statements and to
ascertain whether there are any contradictions in witness
statements." Id. at 1134. The judge decided that, "whether or
not the work product privilege applies" to the Bowman memoranda,
"Consol has a substantial need for those documents and has no
other way of obtaining the precise information." Id.
Characterizing as "critical" the comparison that Consol seeks to
make, the judge ordered the Secretary to produce copies of the
five Bowman memoranda. Id.
B. Disposition
The Secretary contends that the Bowman memoranda are
protected by the work-product privilege because they are
documents prepared by the Secretary's representative in
anticipation of litigation. S. Br. at 7-8. The Secretary claims
that because the Bowman memoranda constitute "opinion" work
product, they should be afforded the highest protection under
Rule 26(b)(3) of the Federal Rules of Civil Procedure, and that
the judge erred in implicitly determining the Bowman memoranda to
be merely "routine" work product. Id. at 8-10. The Secretary
also argues that, even if the Bowman memoranda are routine work
product, the judge erred in finding that Consol had demonstrated
both a substantial need for the material and that it was unable
to obtain substantially the same information by other means. Id.
at 10-13. The Secretary maintains that Consol's asserted need
for potential impeachment material does not rise to the level of
a substantial discovery need, and that Consol can depose the five
individuals at issue. Id. at 13-16.
Consol responds that, because the Bowman memoranda are the
work of a non-attorney, and because the judge explicitly held
that the memoranda contain no opinions, comments, or revelations
of Bowman's mental impressions, the lowest level of work-product
protection is appropriate. C. Br. at 9-10. Consol also contends
that the judge correctly found that Consol has both a substantial
need for the documents and no other way of obtaining the precise
information contained therein. Id. Consol argues that it may be
able to make other use of the Bowman memoranda in addition to
using it for impeachment purposes, such as to discover
information regarding the consistency of MSHA's application of
some of its ventilation regulations. Id. at 11. Consol also
states that depositions of the individuals who are the subject of
the Bowman memoranda would not necessarily produce the same
information special investigator Bowman obtained. Id.
Commission Procedural Rule 56(b), 29 C.F.R. � 2700.56(b),
provides that parties may obtain discovery of any relevant matter
that is not privileged. The work-product privilege has been
codified in Rule 26(b)(3) of the Federal Rules of Civil
Procedure.[2] In ASARCO, Inc., 12 FMSHRC 2548 (December 1990),
the Commission discussed the work-product privilege, stating:
In order to be protected by this immunity
under [Rule] 26(b)(3), the material sought in
discovery must be:
1. "documents and tangible
things;"
2. "prepared in anticipation of
litigation or for
trial;" and
3. "by or for another party or by
or for that party's
representative."
It is not required that the document be
prepared by or for an attorney. If materials
meet the tests set forth above, they are
subject to discovery "only upon a showing
that the party seeking discovery has
substantial need of the materials in the
preparation of the party's case and that the
party is unable without undue hardship to
obtain the substantial equivalent of the
materials by other means." If the court
orders that the materials be produced because
the required showing has been made, the court
is then required to "protect against
disclosure of the mental impressions,
conclusions, opinions, or legal theories of
an attorney or other representative of a
party concerning the litigation."
Id. at 2558 (citations omitted). The burden of satisfying the
three-part test is on the party seeking to invoke the work-
product privilege, but once that party has met its burden, the
burden shifts to the party seeking disclosure to make a requisite
showing that there is substantial need and undue hardship to
overcome the privilege. P. & B. Marina, Ltd. Partnership v.
Logrande, 136 F.R.D. 50, 57 (E.D.N.Y. 1991), aff'd, 983 F.2d 1047
(2d Cir. 1992).
The Bowman memoranda are plainly "documents," and there is
no argument that, in preparing them, special investigator Bowman
was not acting in his capacity as a "representative" of a "party"
to the litigation, in this case the Secretary.[3] We further
find that the documents have been "prepared in anticipation of
litigation or for trial," because each was prepared after MSHA
had filed civil penalty proceedings against Consol on March 9,
1993. The memoranda thus were prepared not only in
"anticipation" of litigation, but in the midst of it. Each of
the Bowman memoranda therefore clearly meet the three
requirements for the work-product privilege set forth in ASARCO.
We also find that the judge erred in ruling that Consol had
established a "substantial need" for the Bowman memoranda. As
the basis for his ruling, the judge cited Consol's need for the
materials "to compare present recollections against prior
statements and to ascertain whether there are any contradictions
in witness statements," characterizing that comparison as
"critical." 18 FMSHRC at 1134. A number of courts, however,
have concluded that, by itself, the desire to determine through
discovery whether potential impeachment material exists within
protected work product does not constitute a "substantial need"
for purposes of the work-product privilege.[4]
Neither the judge's decision nor Consol's brief cites any
reason why Consol believes the Bowman memoranda may contain
potential impeachment material. Without such an explanation, it
is impossible to find that Consol has a "substantial need" for
the Bowman memoranda under Rule 26(b)(3). Moreover, the
Secretary has stated that all of the five individuals who are the
subject of the Bowman memoranda "provided testimony to MSHA's
accident investigation team in the presence of Consol's counsel
and representatives [and t]hese statements have been provided to
Consol." S. Br. at 13 n.11. Thus, to the extent that the five
witnesses testify at trial, Consol will be able "to compare
present recollections against prior statements and to ascertain
whether there are any contradictions in witness statements" (18
FMSHRC at 1134), without examining the Bowman memoranda.[5]
We therefore reverse the judge's finding that Consol has
established a substantial need for the Bowman memoranda,[6] and
consequently conclude that the Bowman memoranda are protected
from discovery by the work-product privilege as asserted by the
Secretary.[7]
III.
The MSHA Internal Review Material
A. Judge's Decision
The judge was also provided, for in camera review, the MSHA
internal review files at issue, which had been each assigned a
"File Number" in the "Vaughn index" the Secretary had submitted
in support of his objections to Consol's discovery requests.[8]
18 FMSHRC at 1134-35. The judge ordered the Secretary to produce
those "materials relating to the interviews of MSHA enforcement
personnel and specifically to questions regarding compliance with
ventilation plan and other relevant regulations." Id. at 1135.
The judge concluded, based on his "examination of the files . . .
submitted by the Secretary[,]" that only portions of the
documents included within the Secretary's File 16(b) would thus
be included in the order for production. Id. The judge quoted
the Secretary's Vaughn index as describing File 16(b) to contain
"[i]nterview questions and review team notes, including notes on
interviewee answers and on interviewer's impressions for 24 MSHA
employees." Id. The judge ruled "that only the identifying
information on page one of each form questionnaire (questions
1-6) and the following questions and answers are relevant to the
issues herein: page 3 (questions 2-6), pages 4 and 5, page 11
(questions 6-8), page 12 (question 6), page 25 and page 26
(questions 1-6)." Id.
The judge denied the Secretary's deliberative process
privilege claim with respect to that material. He found that the
questions and answers at issue were not related to the process by
which MSHA policies are formulated, concerned primarily factual
matters, and to the extent that "opinions" were included within
them, those opinions either were not related to the deliberative
process or were related to the issues at bar, which the judge
stated to include the "reasonably prudent person" test,
unwarrantable failure, and negligence. Id. at 1136. The judge
found that Consol therefore had a substantial need for the
material and also would be unable, without undue hardship and
additional delay to the proceeding, to obtain its substantial
equivalent. Id.
B. Disposition
While the judge's order states that File 16(b) contains
questionnaires of 24 MSHA interviewees (18 FMSHRC at 1135), for
our in camera review the Secretary forwarded excerpts of the
interview questionnaires for only 13 MSHA employees. According
to the Secretary's cover letter forwarding the documents, only 13
employees answered interview questions that either correspond to
the form questionnaire questions specifically identified in the
judge's decision, or concern compliance with ventilation plan and
other regulations relevant to the issues in the case. S. Letter
dated October 17, 1996. According to the Secretary, 6 of the 13
employees were asked the specific questions referred to by the
judge. Id. The Secretary states that she submitted excerpts
from the interview questionnaires of the other seven employees in
accordance with the language in the judge's order limiting
production to "questions regarding compliance with ventilation
plan and other relevant regulations." Id. (quoting 18 FMSHRC at
1135).
In claiming on review that the material at issue from File
16(b) is protected from disclosure by the deliberative process
privilege, the Secretary contends that the documents were
generated pursuant to a program designed to critically evaluate
MSHA's enforcement activities and recommend appropriate
improvements, and therefore must be considered to be part of the
protected deliberative process. S. Br. at 19-23. The Secretary
asserts that factual material in the File 16(b) documents at
issue cannot be segregated and disclosed without revealing the
deliberative process of MSHA in preparing its Internal Review
Report. Id. at 23.
Consol responds that the judge should be upheld because he
based his ruling on his in camera inspection of the documents at
issue, and limited his order of production to the non-
deliberative, factual information contained in File 16(b). C.
Br. at 15-20. Consol also claims that the judge's decision is
supported by his determination that Consol has a substantial need
for the information, which cannot be obtained by other means.
Id. at 20. Consol contends that the Secretary is implicitly
invoking a "self-critical analysis" privilege, which has not been
well-received by a majority of the federal courts. Id. at 21-25.
In In re: Contests of Respirable Dust Sample Alteration
Citations, 14 FMSHRC 987 (June 1992) ("Dust Cases"), the
Commission described the deliberative process privilege as one
designed to protect "the `consultative functions' of government
by maintaining the confidentiality of `advisory opinions,
recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.'" Id.
at 992 (quoting Jordan v. United States Dep't of Justice, 591
F.2d 753, 772 (D.C. Cir. 1978)). The Commission defined the
privilege as one which "attaches to inter- and intra-agency
communications that are part of the deliberative process
preceding the adoption and promulgation of an agency policy."
Id. Protected by the privilege are "pre-decisional"
communications that are "deliberative," meaning that the
communication "must actually be related to the process by which
policies are formulated." Id. (quoting 591 F.2d at 774)
(emphasis omitted).
Drawing on Supreme Court and other case law on the
privilege, the Commission also recognized that "purely factual
material that does not expose an agency's decision making process
does not come within the ambit of the privilege." Dust Cases, 14
FMSHRC at 993. In instances in which factual material can be
segregated from otherwise protected deliberative material, courts
will order it disclosed unless the party opposing disclosure can
show that the material is "so inextricably intertwined with the
deliberative material that its disclosure would compromise the
confidentiality of deliberative information that is entitled to
protection." Providence Journal Co. v. United States Dep't of
the Army, 981 F.2d 552, 562 (1st Cir. 1992). In such cases,
courts have held factual material to be protected by the
privilege "where they were convinced that disclosure `would
expose an agency's decisionmaking process in such a way as to
discourage candid discussion within the agency and thereby
undermine the agency's ability to perform its functions.'"
Quarles v. United States Dep't of the Navy, 893 F.2d 390, 392
(D.C. Cir. 1990) (quoting Dudman Communications Corp. v. United
States Dep't of the Air Force, 815 F.2d 565, 568 (D.C. Cir.
1987)). The government bears the burden of proving that no
segregable information exists which is not protected by the
privilege. Ethyl Corp. v. EPA, 25 F.3d 1241, 1250 (4th Cir.
1994).
1. Was the File 16(b) Material Part of the
"Deliberative Process"?
We reject the judge's conclusion that the File 16(b)
material at issue was not "`deliberative' in the sense that [the
questions and answers contained therein] are related to the
process by which a policy is formulated." 18 FMSHRC at 1136. The
judge gives no reasoning in support of his conclusion, and it is
contrary to court holdings that the deliberative process
privilege protects documents generated by an agency in the course
of conducting a supplemental accident investigation designed to
educate the agency so that it can improve its future safety
performance. See, e.g., Cooper v. United States Dep't of the
Navy, 558 F.2d 274, 276-78 (5th Cir. 1977); Brockway v. United
States Dep't of the Air Force, 518 F.2d 1184, 1192-94 (8th Cir.
1975).
Moreover, the issue presented here was directly addressed in
Ashley v. United States Dep't of Labor, 589 F. Supp. 901 (D.D.C.
1983). In Ashley, the documents in question had also been
"generated . . . in connection with an in-house self-evaluation
and improvements program," under which an MSHA internal review
was routinely conducted after serious mine accidents. Id. at
904. As in this case, the MSHA internal review was supplemental
to the primary accident investigation and was conducted "for the
purpose of agency self-evaluation and improvement in mine safety
enforcement procedures." Id. at 909 & n.7. The court in Ashley
found the documents protected as part of the deliberative process
because the documents were "intended to contribute to the process
of changing agency procedures." Id. at 908.
The same is true with respect to the File 16(b) material in
this case. The questionnaire material at issue clearly was used
in drafting the Internal Review Report, which made a number of
recommendations to change MSHA procedures. Much of the factual
background information included in the Internal Review Report was
drawn from the questionnaire answers. As it is plain that the
documents were "intended to contribute to the process of changing
agency procedures," we find them to be "deliberative"
communications subject to the deliberative process privilege.
**FOOTNOTES**
[2]: Commission Procedural Rule 1(b), 29 C.F.R. �
2700.1(b), incorporates the Federal Rules of Civil Procedure, so
far as practicable, on any procedural question not regulated by
the Mine Act, the Commission's Procedural Rules, or the
Administrative Procedure Act. Rule 26(b)(3) of the Federal Rules
of Civil Procedure provides in relevant part:
[A] party may obtain discovery of documents
and tangible things otherwise discoverable
under subdivision (b)(1) of this rule and
prepared in anticipation of litigation or for
trial by or for another party or by or for
that other party's representative (including
the other party's attorney, consultant,
surety, indemnitor, insurer, or agent) only
upon a showing that the party seeking
discovery has substantial need of the
materials in the preparation of the party's
case and that the party is unable without
undue hardship to obtain the substantial
equivalent of the materials by other means.
In ordering discovery of such materials when
the required showing has been made, the court
shall protect against disclosure of the
mental impressions, conclusions, opinions, or
legal theories of an attorney or other
representative of a party concerning the
litigation.
[3]: The Commission has conducted its own in
camera review of those documents the judge
ordered the Secretary to produce in his June
6, 1996, ruling.
[4]: See, e.g., In re Grand Jury Investigation,
599 F.2d 1224, 1233 (3rd Cir. 1979) (desire
to impeach witness' testimony does not, by
itself, overcome protection afforded
interview memorandum); Hauger v. Chicago,
Rock Island & Pacific R.R. Co., 216 F.2d 501,
508 (7th Cir. 1954) (rights of litigant in
work product of lawyers and agents not
required to give way to adversary's right of
discovery upon adversary's mere surmise or
suspicion that impeaching material might be
found in work product); Fontaine v. Sunflower
Beef Carrier, Inc., 87 F.R.D. 89, 93 (E.D.
Mo. 1980) (mere speculation that
contemporaneous statement may prove to be
contradictory or impeaching not sufficient to
overcome limited privilege applicable to
trial preparation materials); see also
Stephens Produce Co. v. NLRB, 515 F.2d 1373,
1377 (8th Cir. 1975) (to overcome limited
investigatory privilege requires more than
surmise that witnesses had made earlier
inconsistent statements which might be used
to impeach them).
[5]: In fact, as those statements were more
contemporaneous with the accident than the
interviews conducted by Bowman, their
probative value is much greater than the
Bowman memoranda. Compare Smith v. Diamond
Offshore Drilling, 168 F.R.D. 582, 584 (S.D.
Tex. 1996) (ordering production of witness
statements taken immediately following
accident on basis of substantial need and
undue hardship exception to work-product
privilege) with Carson v. Mar-Tee Inc., 165
F.R.D. 48, 50 (E.D. Pa. 1996) (refusing to
find substantial need on basis of impeachment
value where purportedly inconsistent
statement given months after auto accident to
insurance adjuster was not statement most
contemporaneous with accident). Moreover,
three of the Bowman memoranda are merely
second-hand summaries of interview statements
taken a number of months before the summaries
were prepared. Their value as impeachment
material is therefore highly questionable,
which further militates against a finding
that a substantial need for the material has
been established. To overcome the work-
product privilege, "the impeachment value
must be substantial because every prior
statement has some impeachment value and
otherwise the exception would swallow the
rule." Duck v. Warren, 160 F.R.D. 80, 83
(E.D. Va. 1995) (quoting Suggs v. Whitaker,
152 F.R.D. 501, 507-08 (M.D.N.C. 1993)).
[6]: As for Consol's argument that it has a
substantial need for the Bowman memoranda to
discover information regarding the
consistency of MSHA's application of some of
its ventilation regulations, we saw no such
information during our in camera review of
the Bowman memoranda.
[7]: In light of our holding, we need not decide
whether the judge correctly ruled that Consol
also sufficiently demonstrated that it has no
other way of obtaining the substantial
equivalent of the Bowman memoranda without
undue hardship. Nor do we need to address
whether the Bowman memoranda constitute
opinion work product and, if so, what higher
level of protection would therefore be
appropriate under Rule 26(b)(3).
[8]: A "Vaughn index" is an index containing an
itemization of documents with a correlated
indication of the basis for each privilege
claimed. See In re: Contests of Respirable
Dust Sample Alteration Citations, 14 FMSHRC
987, 1002 n.15 (June 1992).
2. Does the File 16(b) Material Include Protected
Factual Information?
Our in camera inspection revealed that, with one exception,
all of the questions in the interview questionnaire that the
judge ordered the Secretary to produce were designed to elicit
purely factual information. In addition, all of the answers
given, including to the one question which requested an opinion
of two MSHA enforcement personnel, provided strictly factual
information, some of which appears in the Internal Review Report
released to the public. Consequently, we affirm the judge's
ruling that the material at issue is not protected by the
deliberative process privilege on the ground that it contains
purely factual information.
The Secretary does not claim that the File 16(b) material at
issue here is covered by the deliberative process privilege
because it contains "advisory opinions, recommendations and
deliberations" the Commission identified in the Dust Cases as
protected by the privilege. Rather, relying almost exclusively
on language from the district court's opinion in Ashley and an
affidavit below in support of her claim that all of the File
16(b) material is protected from discovery, the Secretary
maintains that the factual material contained within the
documents at issue is protected because it cannot be disclosed
without revealing MSHA's deliberative process. S. Br. at 23. We
find all of the Secretary's arguments in support of this position
unavailing.
With respect to "segregable factual material," the court in
Ashley required MSHA to "demonstrate that the withheld documents
contain no reasonably segregable factual material, which must be
disclosed unless to do so would compromise the private remainder
of the documents." 589 F. Supp. at 910. The court explained:
For purposes of this segregability
requirement, the District of Columbia Circuit
has drawn a rough distinction between
documents which are primarily evaluative,
analytical or recommendatory, from which
factual material need not be disclosed if it
is inextricably intertwined, and documents
which are "subjective" only because the
author has chosen which facts are important
or which issues to highlight. All factual
material in documents of the latter variety
must be disclosed unless the agency can
demonstrate that the document supports a
specific, identifiable decision, that
revelation of the factual material would
reveal aspects of the agency's decisionmaking
process, and that the factual material at
issue is available to the public in some
other, albeit less convenient, form.
Id. (citations omitted). The Secretary argues that, as in
Ashley, her deliberative process privilege claim should be upheld
here because the factual material in dispute supports specific,
identifiable decisions, that revelation of it would reveal
aspects of MSHA's decisionmaking process, and that it is already
available to the public in the Internal Review Report. S. Br. at
23.
The Secretary is mistaken in her reading of Ashley. The
court there only ordered the Secretary to produce the first type
of factual information described in Ashley - that which was not
"inextricably intertwined" in documents that were "primarily
evaluative, analytical or recommendatory" material. See 589 F.
Supp. at 910-12. The court found that all of the MSHA documents
it held to be protected by the deliberative process privilege
"contain[ed] the personal opinions, evaluations, or
recommendations of agency staff." Id. at 909. In contrast, the
File 16(b) material at issue here not only includes no such
material, but actually is more like the material found to be
easily segregable and thus unprotected by the court in Ashley -
information from short field reports regarding observations made
by MSHA personnel. See id. at 911.
In addition, the Secretary provides no support, other than
conclusory statements, for her claim that the File 16(b) material
at issue here meets the requirements for protection of factual
material set forth in Ashley. The Ashley court found that
"MSHA's affidavits describe in detail how each document was or
may be utilized and how it fits into the agency's deliberative
process." Id. at 909 (emphasis added). Here, the only support
for the Secretary's claim that the questionnaire excerpts should
be protected is an affidavit submitted below by an MSHA official
in support of the Secretary's position that all of the
questionnaire files should be covered by the privilege.
Moreover, courts only protect from disclosure under the
deliberative process privilege factual material in underlying
documents when it is clear that there was an evaluation made by
an agency regarding which facts it would rely upon and those
which it would disregard. Compare Playboy Enterprises, Inc. v.
United States Dep't of Justice, 677 F.2d 931, 935-36 (D.C. Cir.
1982) (mere act of selecting facts to appear in report does not
render such report deliberative), with Montrose Chemical Corp. v.
Train, 491 F.2d 63, 68 (D.C. Cir. 1974) (protecting factual
summaries as deliberative where record established that agency
personnel preparing such summaries engaged in evaluative process
in choosing which facts to include in summary and which to
exclude).[9] But the File 16(b) material at issue here differs
little from the factual background material already made public
in the Internal Review Report. Because the evidence submitted by
the Secretary does not establish that an evaluative process took
place with respect to the File 16(b) material in question during
preparation of the Internal Review Report,[10] we find the
material at issue to be "purely factual material that does not
expose [MSHA]'s decision making process" and thus hold that the
material is not protected by the deliberative process privilege.
While neither the judge nor the Secretary addressed the
issue, the File 16(b) material in question does include two
instances in which MSHA interviewees were asked an identical
question which requested not facts, but rather their respective
opinion on a matter. Specifically, an MSHA ventilation
supervisor, in the second question on page 5 of his interview
questionnaire, and another MSHA official, in the second question
on page 4 of his interview questionnaire, were asked whether MSHA
should have taken a specified action. Because both, instead of
giving an opinion, indicated in their answers that the action had
been taken, their answers, as factual information, are not
protected material under the deliberative process privilege.
Moreover, the question itself is not necessarily protected
simply because it requested opinion information. Standing alone,
it establishes nothing more than MSHA's desire to know what
course of action individual employees felt should have been
taken. As the Internal Review Report itself indicates that there
was a difference of opinion among MSHA employees on the subject,
disclosure of the fact that MSHA inquired into the subject as
part of its internal review can hardly be said to invade MSHA's
deliberative process. Even opinion information is not protected
by the deliberative process privilege when its disclosure would
not reveal the deliberative process within the agency.[11]
Accordingly, we affirm the judge's production order as to all of
the File 16(b) material.[12]
IV.
Conclusion
For the foregoing reasons, we reverse the judge's order
requiring the Secretary to produce the Bowman memoranda, affirm
the judge's order requiring production of MSHA internal review
File 16(b) material, and remand this matter for further
proceedings.
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
**FOOTNOTES**
[9]: The dissemination of the Internal Review Report as a
public document distinguishes this case from Cooper and Brockway,
cases in which the deliberative process privilege was
successfully invoked to protect from disclosure the factual
content of investigative documents which formed the basis for
confidential internal review reports.
[10]: We are not persuaded by the Secretary's claim that
the factual material at issue should be considered protected
material simply because it comes from "answers which the
[internal review team members] thought important enough to note."
S. Br. at 24. Such an argument has been rejected in similar
situations. See, e.g., ITT World Communications, Inc. v. FCC,
699 F.2d 1219, 1239 (D.C. Cir. 1983) (refusing to protect notes
containing what appeared to be no more than "straightforward
factual narrations" where agency had "presented no evidence that
the notes [were] evaluative in nature" in support of claim that
agency personnel had made subjective decisions in taking those
notes), rev'd on other grounds, 466 U.S. 463 (1984). Moreover,
our in camera inspection revealed that in many instances, with
respect to the same question, some review team members recorded
an interviewee's answer while others did not.
We also reject as a ground for protecting the File 16(b)
factual material from disclosure the Secretary's claim that
"because the interview notes are at issue in this case, the
findings of fact [in the Internal Review Report] `necessarily
were premised on an assessment and resolution of the relative
credibility of [the] statements' given by the interviewees." S.
Br. at 23 (quoting Providence Journal, 981 F.2d at 562). Unlike
the record before the court in Providence Journal, there is no
support here for the Secretary's claim that she made credibility
determinations in deciding what information from the
questionnaire answers should be reflected in the Internal Review
Report and what information should be left out. The Secretary
has not cited, and we were not able to find, any instance in the
documents at issue in which differing or inconsistent accounts
were given regarding the same subject.
[11]: See, e.g., Mead Data Central, Inc. v. United States
Dep't. of the Air Force, 566 F.2d 242, 256 n.40 (D.C. Cir. 1977);
Dudman Communications, 815 F.2d at 1568.
[12]: We thus need not address the judge's findings that
the File 16(b) material in question must also be produced by the
Secretary because Consol has a substantial need for the
information and would be unable to obtain the substantial
equivalent of the information contained therein by other means
and without undue hardship and further delay to the proceedings.
Commissioner Marks, concurring in part, dissenting in part:
I am in agreement with my colleagues' conclusion that the
Bowman memoranda are protected from discovery because of the work-
product privilege, and that therefore the judge's decision to
the contrary should be reversed.
With respect to the MSHA Internal Review File 16(b) material
at issue, I conclude, as do my colleagues, that the documents are
deliberative communications subject to the deliberative process
privilege. However, contrary to my colleagues, I also conclude that
the subject material contains factual material that, if disclosed,
does pose a risk of exposure of MSHA's decisionmaking process.
In this regard, I am particularly persuaded by the
Secretary's argument that disclosure of the specific
questions and responses will clearly reflect what was important
to the interview team conducting the review and thereby
impermissibly trample upon the Secretary's deliberative process.
S. Br. at 23. As such, I find that my colleagues' reference to Quarles
v. United States Dep't of the Navy, 893 F.2d 390 (D.C. Cir. 1990), is
directly on point - factual material should be protected by the
privilege when disclosure "would expose an agency's decisionmaking
process in such a way as to discourage candid discussion within
the agency and thereby undermine the agency's ability to perform its
functions." Slip. Op. at 9 (citing 893 F.2d at 392). Moreover,
"because the interview notes are at issue in this case, the findings of
fact `necessarily were premised on an assessment and resolution of the
relative credibility of [the] statements' given by the
interviewees." S. Br. at 23(quoting Providence Journal Co.
v. United States Dep't of the Army, 981 F.2d 552, 562 (1st Cir. 1992)).
Thus, I strongly feel that the approach taken by my colleges
needlessly results in a conclusion that seriously threatens to
undermine an important Secretarial effort - to conduct an internal
review of its own actions to see if the enforcement of the Mine Act is
being conducted in the best possible way. To justify the
disclosure of such material - material we all conclude is
properly subject to the deliberative process privilege - the
Commission should have been presented with far more compelling
reasons than those provided by Consol.
Accordingly, I dissent and I would reverse the judge's order
requiring the production of the material in File 16(b).
Marc Lincoln Marks, Commissioner