In re: Contests of Respirable Dust Sample Alteration Citations

Plain-English summary

Contestants in the respirable dust sample alteration master docket sought documents from the Department of Labor’s Office of Inspector General concerning an investigation into alleged tampering with coal-dust sample cassettes. Judge James A. Broderick denied most requests to compel production, upholding investigative, informant, deliberative-process, attorney-client, and related privilege claims. He granted the request for the former lead investigator’s home address unless the investigator agreed to appear for a deposition, and ordered several disputed documents submitted for in camera inspection. He also denied the request to search additional potentially related OIG files.

Decision snapshot

• Cited standards: 5 U.S.C. § 552a(a)(5) and § 552a(b)(11)
• Outcome: The motion to compel was granted in part and denied in part, with specified documents sent for in camera inspection.
• Key point: Discovery relief was limited by privilege claims, but the ALJ ordered targeted disclosure or inspection where the requested information could be important to the defense.

Full text (FMSHRC public release)

CCASE:
IN RE CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS
DDATE:
19920825
TTEXT:

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        Federal Mine Safety and Health Review Commission
              Office of Administrative Law Judges

IN RE: CONTESTS OF RESPIRABLE Master Docket No. 91-1
DUST SAMPLE ALTERATION
CITATIONS

             ORDER GRANTING IN PART AND DENYING IN
               PART CONTESTANTS' MOTION TO COMPEL

               ORDER DIRECTING INSPECTOR GENERAL
                    TO SUBMIT DOCUMENTS FOR
                      IN CAMERA INSPECTION

 At the request of Contestants represented by the law firm of

Jackson and Kelly, I issued a subpoena duces tecum which was
served on the United States Department of Labor, Office of the
Inspector General (OIG) on July 2, 1992. The subpoena directed
the OIG to produce all documents in its possession concerning
MSHA Internal Investigation No. 890014, OIG Case No.
30-0801-0036, relating to the investigation of alleged tampering
with coal dust cassette samples. Some documents were withheld in
whole or in part based on claims of privilege.

 On July 6, 1992, Contestants filed a motion to compel

arguing that the privileges claimed by the OIG do not permit
their refusal to comply with the subpoena. On July 7, 1992,
Contestants filed an amended motion to compel, seeking, in
addition to an order compelling the production of documents
called for in the subpoena, the address of Carter Elliott the
lead OIG investigator in the case. On July 14, 1992, Contestants
filed a supplement to the motion to compel, seeking, in addition
to the order sought by the prior motion, an order compelling "a
search of possibly related OIG files for AWC materials." On July
22, 1992, Contestants filed a second supplement to the motion to
compel. On July 29, 1992, after an order was issued granting an
extension of time, OIG filed an opposition to the motion to
compel. It filed a memorandum in support of its opposition and a
declaration of the Inspector General Julian W. De La Rosa. Also
submitted with the opposition were copies of additional documents
with certain excisions provided in response to the subpoena duces
tecum.

 The declaration of Inspector General De La Rosa describes in

numbered paragraphs the documents or portions of documents
withheld, and the privilege or privileges asserted for the
nondisclosure. For convenience in deciding the motion, I will use

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Paragraphs 6 and 7 of the declaration indicate that 66 of the 67
Reports of Interviews originally withheld are released to
Contestants with the names of the persons interviewed and other
information which would lead to disclosure of their identities
excised. Also withheld are dust data cards and related materials
attached to some of the reports because these would identify the
persons interviewed. The declaration further states that
excisions were made of any part of interviews which would divulge
any OIG investigative techniques or strategies, but I have not
seen any indication of such excisions in the 66 reports. The
excisions are based on the investigative privilege and the
informant privilege. The investigative privilege protects from
disclosure documents prepared or received in the course of a
civil or criminal investigation, especially when disclosure would
interfere with enforcement proceedings. Black v. Sheraton
Corporation of America, 564 F.2d 531 (D.C. Cir. 1977); Bristol
Meyers Co. v. Federal Trade Commission, 424 F.2d 935 (D.C. Cir.
1970), cert. denied, 400 U.S. 824 (1970). The informant privilege
(also termed the informer's privilege) protects from disclosure
the identity of persons furnishing information to law enforcement
officials. Rovaro v. United States, 353 U.S. 53 (1957);
Secretary/Logan v. Bright Coal Company Inc., 6 F.M.S.H.R.C. 2520
(1984). Both are qualified privileges and where disclosure is
essential to a fair determination of a case, the privilege must
yield. In this case the names of the inspectors who were the
subjects of the OIG investigation have been disclosed to
Contestants. They have not shown or even asserted that disclosure
of the identities of the inspectors for each of the disclosed
reports is necessary for their defense. The motion to compel and
the motion for in camera inspection will be denied with respect
to the excisions having to do with the identity of the subjects
of the interviews covered by the reports. The OIG also excised
portions of one sentence from four interview reports which
contain information covered by Rule 6(e). I accept the
representations of the Inspector General with respect to these
excisions and will deny the motion to compel. The declaration
(paragraph 7) also states that one Report of Interview is being
withheld in its entirety because it "contains extremely sensitive
information and allegations which are raw and uncorroborated."
The long term intelligence gathering abilities of OIG would be
compromised, according to the declaration, if it were disclosed.
I accept the representations and will not order disclosure of
that one Report of Interview.

 Paragraph 8 of the declaration asserts the investigative and

informant privileges for 19 pages of OIG memoranda memorializing
reviews of personnel files and credit bureau checks on persons
OIG intended to interview. The memoranda reveal the identities of
such persons and other personal information. I uphold the claims
of privilege, and will deny the motion to compel and the request
for an in camera inspection.

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Paragraph 9 asserts the investigative privilege for a memo of a
conversation between an OIG agent and a New Jersey State Police
Detective. The memo concerns the OIG's use of a specific
investigative technique used during the investigation, and the
declaration states that disclosure of the technique could
compromise future OIG investigations. Disclosure of such
information is not needed in Contestants' defense, and I will
deny the motion to compel and the request for in camera
inspection.

 Paragraph 10 invokes the deliberative process privilege for

three documents (one page each) related to the OIG closing memo
sent to MSHA: (1) an undated draft version of the closing memo
prepared by Raymond Carroll with handwritten notes by Assistant
I.A. Bassett; (2) an undated fax transmission from Carroll to
Bassett; and (3) a memo from Carroll to Bassett containing
comments on the final version. The documents come within the
protection of the deliberative process privilege, but I will
direct that they be submitted to me for in camera inspection so
that I may determine whether Contestants' need for the document
outweighs OIG's interest in confidentiality.

 Paragraph 11 asserts the investigative and informant

privileges for withheld portions of the table of contents from
the OIG file "in order to protect the identities of those persons
interviewed by OIG . . . . " I uphold the claims of privilege,
and will deny the motion to compel and the motion for in camera
inspection.

 Paragraph 12 asserts the investigative and informant

privileges for withheld portions of letters from Raymond Carroll
to two Assistant U.S. Attorneys. I uphold the claims of
privilege, and will deny the motion to compel and the motion for
in camera inspection.

 Paragraph 13 asserts the investigative and informant

privileges for portions of a memorandum from Raymond Carroll to
OIG Regional Inspectors which identify a mine inspector and
disclose the location of interviews. I uphold the claims of
privilege, and will deny the motion to compel and the motion for
in camera inspection.

 Paragraph 14 asserts the investigative privilege for the

withheld portion of a letter from Raymond Carroll to an Assistant
U.S. Attorney which contains information regarding the
investigative techniques used by OIG. I uphold this privilege
claim. It also claims the deliberative process privilege for a
portion of paragraph five of the letter which "contains a
personal characterization by OIG Special Agent Carter Elliott
which does not reflect the conclusions of the OIG . . . . " I
uphold the privilege claim, but will direct that this portion of
the letter be submitted to me for in camera inspection so that I
may

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determine whether Contestants' need for the document outweighs
OIG's interest in confidentiality.

 Paragraph 15 asserts the investigative privilege for the

withheld portions of a report of Carter Elliott containing
information concerning the investigative techniques used by OIG
during the investigation. I uphold the claim of privilege, and
will deny the motion to compel and the motion for in camera
inspection.

 Paragraph 16 asserts the deliberative process privilege for

withheld portions of a memorandum of Raymond Carroll containing
"a personal characterization . . . which does not reflect the
opinion of the OIG . . . . " In addition the locations of the
personal residences of MSHA inspectors have been withheld, on the
basis of "personal privacy concerns." I uphold the deliberative
process privilege, but will direct that the withheld portion of
the document containing the "personal characterization" be
submitted for in camera inspection. The personal residences of
MSHA inspectors need not be disclosed or submitted for
inspection.

 Paragraph 17 indicates that the withheld portions of the OIG

"predication memorandum" have been disclosed.

 Paragraph 18 asserts the deliberative process privilege for

a draft memorandum from I. A. Bassett of OIG to Jerry Spicer of
MSHA. The draft was prepared by Raymond Carroll and forwarded to
OIG headquarters but no further action was taken and it was never
sent to Spicer. I uphold the claim of privilege, but will direct
that the document will be submitted for in camera inspection so
that I may determine whether Contestants' need for the document
outweighs OIG's interest in confidentiality.

 Paragraphs 19 and 20 refer to information received from the

U.S. Attorney and from an agent of the grand jury which is stated
to be subject to Rule 6(e) of the Federal Rules of Criminal
Procedure. I will deny Contestants' motion to disclose the
information and their motion for in camera inspection for reasons
previously given in this order.

 Paragraph 21 asserts the investigative and informant

privileges for a handwritten note containing a reference to the
location of an interview conducted by OIG. I uphold the claims of
privilege, and will deny the motion to compel and the motion for
in camera inspection.

 Paragraph 22 asserts the attorney-client privilege for a

note from Raymond Carroll concerning a telephone conversation
with OIG counsel Howard Shapiro. The note describes information
and advice given to Carroll. I uphold the claim of privilege, and
will deny the motion to compel and the motion for in camera

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inspection.

 Paragraph 23 claims the attorney-client privilege for

withheld portions of a handwritten note from Carroll concerning a
meeting involving Carroll, MSHA counsels Doug White and Page
Jackson, OIG counsels Sylvia Horowitz and Howard Shapiro, and OIG
agent Carter Elliott. The withheld portions of the document
describe information and advice provided by OIG counsel to
Carroll. I uphold the claim of privilege, and will deny the
motion to compel and the motion for in camera inspection.

 Paragraph 24 states that the Inspector General believes "it

is inappropriate" to disclose the home address of former OIG
Special Agent Carter Elliott and has instructed OIG counsel to
resist such disclosure. Carter Elliott was, according to
Contestants' motion to compel, the lead OIG investigator in the
investigation of the MSHA inspectors. He has since retired from
the Government. According to OIG counsel he is aware of the
outstanding subpoena for his testimony. OIG counsel argues that
Mr. Elliott's address is contained in his official personnel file
which is protected from disclosure by the Privacy Act, 5 U.S.C.
552a(a)(5). Section (b)(11) of the Act permits disclosure
"pursuant to the order of a court of competent jurisdiction." OIG
argues that as an administrative law judge I am not a court of
competent jurisdiction. It does not dispute my jurisdiction to
compel discovery under the Fed. Rules of Civ. P., nor my
jurisdiction to issue subpoenas. In Barron's Law Dictionary, (2d
ed. 1984) p. 82, a "competent court" is defined as "one having
proper jurisdiction over the person and property at issue." The
issue in the cases before me are whether mine operators,
including Contestants, were involved in altering the weights of
respirable dust samples. The OIG investigation concerned a
closely related matter, "the possible tampering of respirable
dust sample cassettes by mine safety inspectors." (OIG
memorandum, p. 2). Mr. Elliott was involved as a Government agent
in that investigation. He may have information important to
Contestants' defense. The cases before me have been consolidated
for an issues trial scheduled to commence on December 1, 1992. To
facilitate the early completion of discovery, I will order OIG to
disclose the home address of Mr. Elliott unless he agrees to
present himself for his deposition. If, as OIG counsel asserts,
the release of his address may compromise his and his family's
safety, and subject him to harassment, he can avoid these
consequences by agreeing to testify.

 Contestants further seek an order to compel a search of

other OIG files possibly related to those covered by the subpoena
duces tecum. No good reason has been advanced for broadening the
scope of the subpoena, and the request will be denied.

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ORDER

    Therefore, IT IS ORDERED

 1. The motion to compel is DENIED with respect to the

withheld documents or portions of documents described in
paragraphs 6, 7, 8, 9, 11, 12, 13, that part of paragraph 14
referring to a description of investigative techniques, 15, 19,
20, 21, 22, and 23 of the Declaration of Inspector General Julian
W. De La Rosa.

 2. The motion to compel is GRANTED with respect to paragraph

24 of the Declaration referring to the home address of Carter
Elliott, unless on or before September 15, 1992, Mr. Elliott
agrees to present himself for a deposition by Contestants'
counsel.

 3. The OIG is DIRECTED to submit to me for in camera

inspection on or before September 15, 1992, the withheld
documents or portions of documents described in paragraph 10,
that part of paragraph 14 referring to paragraph five of the
letter, that part of paragraph 16 containing the personal
characterization of Raymond Carroll, and paragraph 18 of the
Declaration of the Inspector General.

 4. The motion to compel a search of other "possibly related

OIG files for AWC materials" is DENIED.

                               James A. Broderick
                               Administrative Law Judge