Contests of Respirable Dust Sample Alteration Citations

Plain-English summary

This master-docket discovery order concerned documents related to alleged alteration of respirable coal mine dust samples. Judge James A. Broderick granted the Secretary's motion to reconsider earlier privilege rulings after reviewing the documents in camera. He kept three documents protected as part of the deliberative or investigative process, but ordered production of other documents, including draft reports, factual data, and related materials, by October 15, 1991. The order addressed discovery and privilege only and did not decide the underlying citation contests.

Decision snapshot

• Cited standard(s): None identified in this order.
• Outcome: The motion for reconsideration was granted in part, privilege was upheld for some documents, and other documents were ordered produced.
• Key point: Discovery materials may be ordered produced when contestants' need for factual information outweighs the Secretary's confidentiality interest, even when the documents include deliberative-process material.

Full text (FMSHRC public release)

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

IN RE: CONTESTS OF RESPIRABLE DUST MASTER DOCKET NO. 91-1
SAMPLE ALTERATION CITATIONS

        ORDER GRANTING MOTION FOR RECONSIDERATION
          ORDER UPHOLDING CLAIM OF PRIVILEGE FOR
                     CERTAIN DOCUMENTS
            ORDER TO PRODUCE CERTAIN DOCUMENTS

 On October 4, 1991, counsel for Kentucky Carbon Corp., et

al., filed a "renewed" motion to compel production of documents
in accordance with my orders issued September 27, 1991. The
Secretary on October 4, 1991, filed a motion for reconsideration
of my order of September 27, 1991, insofar as that order required
the Secretary to produce Documents Nos. 3, 5, 201, 203, 350, 353,
365, 366, 367, 401 and 424. The Secretary submitted each of these
documents for my in camera inspection.

 I have considered the two motions and have reviewed the

documents submitted for in camera inspection. On the basis of
that consideration and review, the Secretary's Motion for
Reconsideration is GRANTED.

 In my order issued September 13, 1991, I indicated that

following a determination of the propriety of the Secretary's
claims of privilege, I would determine whether privileged
documents should be ordered disclosed because Contestants' need
for the documents outweighed the Secretary's interest in keeping
them confidential. Order of September 13, 1991 at 8-9, 17. My
order of September 27, 1991, to produce certain documents
concerning which I upheld the claim of privilege was not issued
sua sponte as the Secretary asserts, but pursuant to the motions
to compel production filed July 26, 1991, August 13, 1991 and
August 19, 1991. Contestants have asserted that the documents in
question directly relate to the central issue of this case, that
they are exclusively in the possession of the Government, and
that they consist largely of factual material. The Secretary has
not denied the first two assertions, but has, at least with
respect to certain of the documents, denied that they are largely
factual. Since I have now examined all the withheld documents in
camera, I can decide whether they are exclusively factual or are
deliberative.

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I

 On reconsideration of my order of September 27, 1991, the

following documents need not be produced.

 Document No. 5. This is a draft report of PHTC dated June

1991 entitled Investigation of Dust Deposition Patterns on
Respirable Coal Mine Dust Samples, consisting of 102 pages. I
erroneously concluded that this document was a preliminary draft
of a completed study. On review, it is obviously part of a
continuing study. It is privileged as part of the deliberative
process, and the needs of the Contestants do not outweigh the
Secretary's interest in confidentiality.

 Document No. 201. This is a memorandum from the MSHA Chief

Division of Health to District Managers dated May 7, 1991 and, as
the Secretary points out in her argument, involves the current
development of a new investigative program in the dust sampling
area. The document is privileged as part of an investigative
effort which is continuing. The operators' need for this document
does not outweigh the Secretary's interest in confidentiality.

 Document No. 203. This is a memorandum of a telephone

instruction March 21, 1990, from Glen Tinney, Arlington Health
Division, entitled "New Void Code AWC--abnormal white center."
The Secretary's motion states that this document, like document
201, involves "the current development of a new investigative
program concerning other potential violations of the dust
sampling program." On the basis of this representation, the
operators' need for the document does not outweigh the
Secretary's interest on confidentiality.

                              II

  On reconsideration of my order of September 27, 1991, the

Secretary is ORDERED to produce the following documents by
placing them in the Document Depository on or before October 15,
1991.

 Documents 3, 365, 366 and 367. These documents are a draft

report of investigation by Warren R. Myers, Ph.D. and Allen
Wells, M.S., of the Department of Industrial Engineering, West
Virginia University concerning "Mine Compliance Sampling Filter
Abnormalities" dated February 15, 1990, with handwritten comments
apparently inserted by MSHA personnel (367), letters from Glenn
Tinney (MSHA) to Dr. Myers, March 16, 1990 and May 4, 1990 with
comments on the draft reports of Dr. Myers (365, 366), and a
letter from Dr. Myers to Glenn Tinney, April 11, 1990, with
responses to Tinney's comments on the first draft report (3).

    As the Secretary noted in her Motion, I held that all of

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these documents fell within the deliberative process privilege.
The question remains whether they are discoverable because the
operators' need for the documents outweighs the Secretary's
interest in keeping them confidential. The litigation before the
Commission involves the Government's charge that the mine
operators tampered with respirable coal mine dust samples. This
contention is based in part on the study and report prepared by
West Virginia University. I conclude that fairness to the
operators (and in the Commission's interest in fairly deciding
these cases) demands that they be apprised not only of the final
report, but also of the deliberations, Government suggestions,
changes and revisions that led to the final report. I do not
believe that the disclosure of these documents will compromise
governmental policy deliberations. The operators' need for the
documents outweighs the Secretary's interest in keeping them
confidential.

 Documents 350 and 353. Document 350 is a computer printout

showing the number and percentage of "tampered" samples from over
six hundred mines. Robert Thaxton in an affidavit August 30,
1990, states that this document was prepared at the request of
the U.S. Attorney for the Southern District of West Virginia.
There is nothing in the document that refers to any criminal
investigation and nothing limiting it to such an investigation.
Document 353 is a computer printout of the number of tampered
samples at different mines in different MSHA districts as of
October 13, 1989. Mr. Thaxton's affidavit states that the content
and organization of the document are related to criminal
investigations. But again there is nothing in the document to
show that it is part of, or limited to, a criminal investigation.
The documents are entirely factual. I conclude that the need of
the operators for this information outweighs the Secretary's
interest in confidentiality.

 Documents 401 and 424. Document 401 is 74 pages in length

and includes drafts of the 1989 PHTC report. Document 424 is a
draft "List of Tables" with handwritten changes and notations
showing results of dust filter testing as part of the PHTC 1989
report. For the reasons given above with reference to Documents
3, 365, 366 and 367, I conclude that the operators' need for the
documents outweighs the Secretary's interest in keeping them
confidential.

                              James A. Broderick
                              Administrative Law Judge