Judge rules records of 2010 mining explosion exempt

A U.S. District Court in Washington, D.C. ruled that some materials — including attorney-client documents and identifying information about the miners — related to a mine explosion in 2010 do not have to be released under the federal Freedom of Information Act.

The explosion at Upper Big Branch Mine-South in Raleigh County, W. Va., on April 5, 2010, killed 29 miners and injured two. The U.S. Department of Labor's Mine Safety and Health Administration (MSHA) investigated the explosion, and found that "the most deadly U.S. coal mine disaster in nearly 40 years" may have been preventable, according to the agency's executive summary report.

The mine operator, Performance Coal Company, made seven FOIA requests with the MSHA seeking records that they believed would help them determine what happened and how to prevent another deadly explosion, according to the opinion.

But MSHA withheld some of the records requested, alleging they were exempt from disclosure under FOIA. Performance Coal Company challenged MSHA's usage of Exemptions 5, 7(A) and 7(C). The court held MSHA “properly withheld” the information under the exemptions.

The court first upheld the agency's withholdings under exemption 5, which covers letters or memoranda sent between or within agencies that would be privileged from civil discovery in litigation.

Under this exemption, the agency sought to withhold records it considered to be attorney-work product, as they were prepared by the top attorney for the Department of Labor "in contemplation of litigation" that might result from the agency's investigation of the explosion. The court ruled the records, which included attorney-generated materials related to a post-explosion memorandum MSHA issued to the media, could be withheld on this ground.

Additionally, the court ruled that records reflecting communications between MSHA and its attorneys were exempt under Exemption 5 as attorney-client privileged materials, since the email messages sought contained attorneys' advice to the agency on strategies in matters relevant to litigation and settlement recommendations.

Email messages, charts and draft documents containing the agency's confidential intra-agency email messages, opinions, legal advice and inquiries were exempt under the deliberative process privilege, the court ruled. The exemption, which is designed to allow agencies to deliberate freely prior to making government decisions or policies, permitted the agency to withhold, for example, records related to recommendations for potential fines against a miner for violations of safety hazards, as they were part of ongoing discussions of whether a miner would ultimately be referred for prosecution.

MSHA also withheld a page of handwritten information pertaining to the ventilation of the mine under exemption 7(A), which protects information compiled for a law enforcement purpose if its release would interfere with an enforcement proceeding. The court upheld the agency's decision to withhold the notes on the basis that their disclosure might interfere with an ongoing FBI criminal investigation and potentially reveal testimony.

MSHA also withheld 239 pages of notes and transcripts from an interview with a now-retired MSHA district manager for the same reason. The court agreed, ruling that the agency could withhold the materials, which included statements about the agency's response to the accident and the mine operator's alleged failure to follow ventilation and methane control plans.

Additionally, MSHA withheld personal information, like the miners' names, phone numbers, and social security numbers under exemption 7(C), which protects people from an unwarranted invasion of privacy that would result from the release of records compiled for law enforcement purposes, unless the public interest in release would outweigh the private interest. The agency argued that withholding this information would protect the miners, government employees, and inspectors from harassment, intimidation, or an invasion of personally privacy, and the court agreed, noting that "there is no public interest asserted by plaintiffs that outweighs such a substantial privacy interest."

Attorneys for the Department of Labor could not be reached for comment. Attorneys for Performance Coal Company declined to comment.

Related Reporters Committee resources:

· Release: News media organizations call for open hearings over W.Va. mining tragedy

· News: Mine safety agency to close portions of its investigation

· NM&L: Data mining in the dark

· Federal Open Government Guide: Exemptions to disclosure under FOIA