Contests of Respirable Dust Sample Alteration Citations

Read the official release (fmshrc.gov)

Plain-English summary

This order addressed several contestants' motions to compel discovery in a master docket involving alleged alteration of respirable dust samples. Judge James A. Broderick upheld the Secretary of Labor's privilege claims for specified documents, ordered other documents submitted for in camera inspection, and directed production of four documents whose descriptions did not justify withholding them. The order left the underlying citation disputes for further proceedings.

Decision snapshot

• Cited provisions: 29 C.F.R. § 2700.55(c) and 5 U.S.C. § 552
• Outcome: The discovery motions were granted in part and denied in part, with privilege claims upheld for some documents, in camera review ordered for others, and four documents ordered produced.
• Key point: Privilege claims in Commission discovery must be supported with enough detail for an independent determination, while relevant nonprivileged material remains discoverable.

Full text (FMSHRC public release)

CCASE:
CONTESTS OF RESPIRABLE DUST SAMPLE
ALTERATION CITATIONS
DDATE:
19910913
TTEXT:

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

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

                 ORDER GRANTING IN PART AND DENYING IN
                 PART CONTESTANTS' MOTIONS TO COMPEL,
                 AND DIRECTING THE SECRETARY TO SUBMIT
                  DOCUMENTS FOR IN CAMERA INSPECTION

 On July 26, 1991, Contestants Kentucky Carbon, et al., filed

a motion for an order to compel the Secretary of Labor to produce
67 documents which she claims are privileged and therefore not
subject to discovery. In the alternative, Contestants request
that the Secretary be required to produce the documents for an in
camera inspection by the court. A memorandum was filed in support
of the motion. On July 26, 1991, Contestants Andalex Resources,
Inc., et al., filed a similar motion and relied on the arguments
advanced on behalf of Kentucky Carbon, et al. Contestants'
position is that the Secretary has failed to meet her burden of
justifying her claim of privilege with respect to all of the
documents. The Secretary filed an opposition to the motions on
August 9, 1991. She agrees to an in camera inspection if I am
unable from the document description to determine the validity of
the privilege asserted.

 On August 13, 1991, Contestants Great Western Coal, Inc.,

and Harlan Fuel Company, filed a motion to compel, joining in the
motion of Kentucky Carbon, et al., and filing a memorandum of
law. Great Western requested that the motions be scheduled for
oral argument.

 On August 19, 1991, Contestants Horn Construction Co., Inc.,

et al, filed a motion to compel, joining in the motions filed by
Kentucky Carbon, et al., and Great Western Coal Co., et al.

 On August 9, 1991, the Secretary filed an Opposition to the

Motion of Kentucky Carbon, et al., to Compel Discovery and filed
a Memorandum of Law in Support of the Opposition. On August 26,
1991, she filed a Memorandum in Support of her opposition to the
Motion of Great Western to compel discovery. On August 21, 1991,
Contestants Kentucky Carbon, et al., filed a Reply Memorandum. On
August 22, 1991, I ordered the Secretary to reply to the
contention in the Motions to Compel, that the privileges must be
formally asserted by the agency head after personal consideration

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of the documents for which privilege is claimed. On August 30,
1991, the Secretary filed an affidavit of Edward C. Hugler,
Deputy Assistant Secretary for Mine Safety and health, U.S.
Department of Labor. Secretary Hugler formally asserted the
"deliberative" privilege with respect to certain documents, the
"investigative" privilege with respect to others and, the
attorney-client privilege with respect to yet others. He
concurred with the assertion of the work product privilege made
by the Solicitor of Labor. He also decided not to assert a
privilege with respect to certain documents for which privilege
was originally claimed.

 Attached to Secretary Hugler's affidavit is an affidavit of

Robert A. Thaxton, Supervisory Industrial Hygienist for MSHA, and
an agent of Federal grand juries investigating allegations of the
alteration of coal dust samples. He reviewed certain documents
for which privileges have been claimed and asserts that release
of those documents would reveal potential targets of criminal or
civil investigations, the investigative techniques being
utilized, or grand jury proceedings. Thaxton's affidavit provides
additional descriptions of documents 326, 327, 328, 350, 353 and
406.

 The affidavit of Secretary Hugler was stated to have been

filed in accordance with my order of August 22, and is intended
to supplement the Secretary's opposition to the Motion to Compel.

 Contestants Great Western, et al., filed a reply to the

Secretary's opposition on September 13, 1991.

                                   I

                    PLAN AND SCHEDULE OF DISCOVERY

 On June 21, 1991, the Secretary, in compliance with the

Prehearing Order Adopting the Amended Plan and Schedule of
Discovery, provided Contestants with a list of 406 documents
which she revised on July 8, 1991, to include 425 documents. Of
the 425, she claims that 67 are privileged and therefore not
subject to discovery. On July 29, 1991, the Secretary filed an
amended Generic and Privileged Document List, adding two
documents to the privileged list. Contestants filed an additional
Motion to Compel production of these documents, and the Secretary
filed an opposition thereto.

                                  II

                        DISCOVERY AND PRIVILEGE

 Under Commission Rule 55(c), 29 C.F.R.   2700.55(c), and

Rule 26(b)(1) of the Federal Rules of Civil Procedure, all

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relevant material not privileged is subject to discovery. The
Commission and the Federal Courts have broadly construed the
discovery rule to include relevant material, and conversely, have
narrowly construed the claim of privilege. Hickman v. Taylor, 329
U.S. 495 (1947); Secretary/Logan v. Bright Coal Co., Inc., 6
FMSHRC 2520 (1984). The burden is on the party claiming that
relevant material is not subject to discovery because of
privilege. In re: Sealed Case, 676 F.2d 793 (D.C. Cir. 1982). As
contestants further point out, even if the Secretary has properly
asserted a privilege, the material may be subject to discovery
"where disclosure is essential to a fair determination of the
case."

 The Secretary claims that the documents involved here are

not subject to discovery because they are covered by (1) the
deliberative process privilege; (2) the investigative file
privilege; (3) the attorney-client privilege; (4) the attorney
work product privilege, and, with respect to certain documents,
by more than one of the privileges. She also asserts that some of
the documents are subject to Rule 6(e) of the Federal Rules of
Criminal Procedure prohibiting disclosure of grand jury
information.

 Rule 501 of the Federal Rules of Evidence provides that

"[e]xcept as otherwise required by the Constitution . . . or
provided by Act of Congress, or in rules prescribed by the
Supreme Court [i.e., Rule 26(b) FRCP] . . . , the privilege of a
witness, person, government . . . shall be governed by the
principles of the common law as they may be interpreted by the
courts of the United States in the light of reason and
experience." Therefore questions of privilege in cases before the
Commission must be determined in the light of Federal Court case
law, which may arise in connection with discovery disputes or in
suits brought to enforce disclosure under the Freedom of
Information Act, 5 U.S.C. 552.

 Contestant Great Western argues that the Government's claim

of privilege may only be asserted by a formal claim of the agency
head supported by affidavit. In the reply memorandum of Kentucky
Carbon, et al., Contestants contend that the claim of privilege
in this case may only be asserted by Secretary of Labor Lynn
Martin after her personal consideration of the documents in
question.

 The case of U.S. v. Reynolds, 345 U.S. 1 (1953), involved an

assertion of privilege based upon national security interests in
a military aircraft accident report. The Supreme Court held that
in such a case "[t]here must be a formal claim of privilege,
lodged by the head of the department which has control over the
matter [here the Secretary of the Air Force], after actual
personal consideration by that officer." Id. at 7-8. Two cases
from the District Court of Delaware, Pierson v. United States,

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428 F.Supp. 384 (D.Del. 1977) and Coastal Corp. v. Duncan, 86
F.R.D. 514 (D.Del. 1980) held that "executive privilege"
(including the deliberative and investigative privileges) may be
asserted only by the responsible agency head (the Commissioner of
Internal Revenue and the Secretary of Energy in the two cases).
The latter case also considered the attorney-client privilege and
the work product privilege although they were asserted by
Department of Energy attorneys. United States v. O'Neil, 619 F.2d
222 (3rd Cir. 1980) involved an administrative subpoena duces
tecum issued by the United States Civil Rights Commission upon
the Commissioner of the Philadelphia police department for
certain records. Privilege was asserted orally by the city
Solicitor based on claims of the Fifth Amendment privilege
against self-incrimination, attorney-client and work product
privileges and police officers' due process rights. The privilege
was rejected because it was asserted orally, because it was not
invoked by the head of the department, and because it was "a
broadside invocation of privilege. . . " In the case Mobil Oil
Corp. v. DOE, 520 F.Supp. 414 (N.D. N.Y. 1981), the court stated
that the department head may delegate the assertion of executive
privilege, "but only to a subordinate with high authority," and
then only after the head of the agency has issued "guidelines on
the use of the privilege." Id. at 416.

 In Fowler v. Wirtz, 34 F.R.D. 20 (S.D. Fla. 1963) the Court

held that where the authority to make policy decisions relating
to suits under the Labor Management Reporting and Disclosure Act
was vested solely in the Secretary of Labor, the Secretary was
required to file a formal claim of privilege against disclosure
of governmental informers.

 In the Bright Coal Co. case, supra, the Commission stated at

page 2523:

      There is authority for the proposition that the
      privilege (informant's privilege) can be invoked only
      through the filing of a formal claim of privilege and
      confidentiality by the head of the department with
      control over the matter, supported by affidavits
      attesting to facts sufficient to allow an independent
      judicial determination that the privilege exists . . .
      [cases]. The great weight of case law concerning the
      privilege, however, addresses and disposes of the issue
      without focusing on whether the privilege was
      "formally' raised.

 In a more recent case, Secretary v. Asarco, 12 FMSHRC 2548

(1990), the Commission considered assertions of informant's
privilege, attorney-client privilege and work product privilege
raised by the Secretary's trial counsel, and did not hold that

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the privileges could only be invoked by the Secretary of Labor
personally.

 Because discovery of relevant material is favored, and a

claim of privilege is narrowly construed, it is essential that
privilege not be lightly claimed. Whatever the formalities
required, its assertion must be made by a responsible
governmental official. In a suit for damages for an alleged
illegal eavesdropping operation by the FBI, plaintiff sought to
discovery FBI files. Executive privilege was claimed and an
affidavit by the Attorney General who had not personally
considered all the documents, together with an offer to produce
the documents for in camera inspection by the court was held
sufficient. Black v. Sheraton Corp., 564 F.2d 531 (D.C. Cir.
1977). The Court said at page 545:

      Even if the affidavit . . . was too imprecise to be
      used in a final determination of the scope of the
      privilege, it was adequate to reserve for the
      government an opportunity to interpose specific
      objections with respect to individual documents before
      their production was ordered. In our view the proper
      course would have been for the District Court to have
      accepted the proffered file for in camera inspection.

 I take official notice that the Secretary of Labor is

involved in a large number and variety of regulatory and
enforcement matters. She may be a party at a given time in
hundreds of proceedings in the courts and before administrative
agencies. To require that she personally consider all the
documents in these cases and invoke privileges such as are
claimed in this administrative proceeding is in my opinion
neither practical nor necessary. I hold that the claim of
executive privilege invoked here by a high level official of the
Department of Labor who has direct responsibility for the matters
involved after personal consideration of the documents, is
sufficient formal claim of privilege when coupled with the
Secretary's offer to submit the documents (except those for which
grand jury immunity is claimed) for in camera inspection.

 The request for oral argument on the motions is DENIED.

                                  III

                    DELIBERATIVE PROCESS PRIVILEGE

 The deliberative process privilege is unique to the

government. It seeks to insure that government agency
subordinates will feel free to provide their superiors with
uninhibited recommendations and opinions and to protect against

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premature disclosure of policies under consideration. Coastal
States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir.
1980). The documents in question must be "predecisional," NLRB v.
Sears Roebuck & Co., 421 U.S. 132 (1975), and must indeed be
deliberative. The agency has the burden of establishing the
deliberative quality of the document. Id., at 868. The Sears
Roebuck case was a suit under the Freedom of Information Act for
disclosure of documents, rather than a discovery issue in a
pending lawsuit, but the principles are the same: See
Environmental Protection Agency v. Mink, 410 U.S. 73, 91:
"Exemption 5 [of FOIA] contemplates that the public's access to .
. . memoranda will be governed by the same flexible common sense
approach that has long governed private parties discovery of such
documents involved in litigation with government agencies." See
also 2 Weinstein's Evidence 509.

 Factual material contained in deliberative memoranda is not

privileged from discovery by private parties in litigation with
the Government. Environmental Protection Agency v. Mink, supra,
Schwartz v. Internal Revenue Service, 511 F.2d 1303 (D.C. Cir.
1975). Memoranda prepared by consultants, not Government
employees, recommending for or against proposed Government action
may be part of the deliberative process of the agency and
protected from disclosure. Wu v. National Endowment for
Humanities, 460 F.2d 1030 (5th Cir. 1972), cert denied, 410 U.S.
926 (1972).

                                  IV

                     INVESTIGATIVE FILE PRIVILEGE

 Documents which are claimed to be privileged by a government

agency because contained in investigatory files must not only be
shown to have been prepared in the course of an investigation,
but the agency must establish that disclosure would interfere
with enforcement proceedings. Coastal States Gas Corp., supra.
Where there is no prospect of law enforcement proceedings,
Bristol Myers Col v. Federal Trade Commission, 424 F.2d 935 (D.C.
Cir. 1970), cert denied, 400 U.S. 824 (1970), or where the
government's regulatory action has already been taken, Wellford
v. Hardin, 444 F.2d 21 (4th Cir. 1971), the materials are not
privileged.

                                   V

                       ATTORNEY-CLIENT PRIVILEGE

 The attorney-client privilege is the oldest privilege known

to common law. Weinstein, supra, 503[02]. It protects from
discovery communications from client to attorney (including
communications from a Government agency to a Government attorney)
and communications from the attorney to the client. Coastal

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States Gas Corp., supra. Confidentiality must be maintained at
the time of the communication and subsequently. Disclosure to an
outside party will waive the privilege. Despite its venerable and
honored state, it is, like all privileges, "narrowly construed
and . . . limited to those situations in which its purposes will
be served." Coastal States Gas Corp., at 862. The privilege is
based on the assumption that it encourages clients to make the
fullest disclosure to their attorneys, enabling the latter to act
more effectively as officers of the Court. Upjohn Co. v. United
States, 449 U.S. 383 (1981).

 The privilege is limited to communications and focuses on

the attorney-client relationship. Information other than
communications between attorney and client is not covered by the
privilege. In re: Sealed Case, at 808.

                                  VI

                  THE ATTORNEY WORK PRODUCT PRIVILEGE

 The attorney work product privilege first set out in the

Supreme Court case of Hickman v. Taylor, and later in Rule
26(b)(3) FRCP is in one sense broader than the attorney-client
privilege in that it protects from disclosure materials not
constituting attorney-client communications. It includes
materials gathered by or prepared by an attorney. In another
sense, it is narrower because it applies only to work and
materials performed or assembled in anticipating of litigation.
Hickman v. Taylor, supra; Coastal States Gas Corp., supra; In re:
Sealed Case, supra.

 Its rationale is not protection of the client's interest,

but rather "both the attorney-client relationship and a complex
of individual interests particular to attorneys that their
clients may not share." In re: Sealed case, at 808-9. The
attorney work product privilege is applicable to Government
attorneys and includes "memoranda prepared by an attorney in
contemplation of litigation which set forth the attorney's theory
of the case and his litigation strategy." NLRB v. Sears Roebuck &
Co., at 154. Jordan v. United States Department of Justice, 591
F.2d 753 (D.C. Cir. 1978). It may include materials prepared or
gathered by others and assembled in the work files of an
attorney. United States v. Kelsey-Hayes Wheel Co., 15 F.R.D. 461,
462 (E.D. Mich. 1954): ". . . work files of an attorney,
assembled in preparation for a lawsuit, are protected against
deposition-discovery provisions of the Federal Rules of Civil
Procedure . . . even though the materials were gathered by FBI
investigators." The "documents must presently be part of the work
files of an attorney before they are entitled to the protection
of the work product rule." Id. at 465. A party seeking disclosure
of such documents may obtain it "upon a showing that the party .
. . has substantial need of the

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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." Rule 26(b)(3). An
order to disclose factual work product materials must "protect
against disclosure of the mental impressions, conclusions,
opinions, or legal themes of an attorney . . . " Id.

 The Commission has held in Asarco, supra, that the work

product rule may apply even to documents not prepared by or for
an attorney, so long as they are prepared because "of the
prospect of litigation."

                                  VII

                          GRAND JURY SECRECY

 Rule 6(e)(2) of the Federal Rules of Criminal Procedure

generally prohibits the disclosure of matters occurring before
the grand jury. As the Secretary notes, this prohibition extends
not only to testimony before the Grand Jury but also to names of
witnesses and identity of documents before the grand jury.
Contestants Great Western, et al., contend that Rule 6(e) is
totally inapplicable to documents not in the actual possession of
the grand jury and therefore is an inappropriate basis for
objection.

 Because I have found the documents claimed subject to grand

jury secrecy privileged on other grounds, I need not decide at
this time whether the Secretary has properly invoked Rule 6(e) of
the Fed. Rules of Criminal Procedure mandating secrecy for grand
jury documents.

                                 VIII

                         QUALIFIED PRIVILEGES

 Except for the attorney-client privilege and the rule

mandating grand jury secrecy, all the privileges involved in this
proceeding are qualified privileges. Therefore, even if the
privilege is properly invoked, disclosure may be ordered if the
needs of the party seeking disclosure outweigh the interests
served by the privilege. Committee For Nuclear Responsibility,
Inc. v. Seaborg, 463 F.2d 788 (D.C. Cir. 1971), cert denied, 404
U.S. 917 (1971); Logan, 6 FMSHRC at 2526. Therefore, I must
decide whether the Contestants have shown that they require the
withheld documents in order to fairly and adequately prepare for
trial in these proceedings, and if they do, whether this
requirement is of greater importance than the Government's
interest in keeping the documents secret.

 Contestants allege that the documents withheld directly

relate to the central issue of the litigation, that they are

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exclusively in possession of the government, and that they
consist largely of factual material. I must consider these
contentions with respect to each document for which I uphold the
claim of privilege to determine whether Contestants' need for the
documents in the preparation of their cases outweighs the
policies behind the privilege against disclosure. The burden of
proof on this issue rests with Contestants.

                                  IX

                 SECRETARY'S CLAIM OF PRIVILEGE UPHELD

 In applying the foregoing principles to the documents

claimed to be privileged among the listed documents provided in
the Secretary's Amended Generic and Privileged Document List, I
have determined that the Secretary's claim of privilege was
properly invoked with respect to the following documents. I
conclude that her description of these documents, while somewhat
cryptic and lacking in detail, is sufficient for me to determine
that the documents fit the privilege asserted.

 Document 3. Letter from Warren Myers, Ph.D. [apparently a

consultant] to MSHA regarding draft of the report [Document 1].
The deliberative process privilege includes memoranda prepared by
consultants to agency personnel concerning proposed Government
Action. See Wu v. National Endowment, supra. The document is
privileged as part of the deliberative process of the Agency.

 Document 4. Summaries of investigative work conducted on

AWC's by West Virginia University and Pittsburgh Health Tech
Center. I am upholding the privilege based on the deliberative
process, which the document clearly fits, but not the claim of
attorney work product since there is no showing that the
summaries were prepared by or for Government attorneys, were part
of the attorney work files, or prepared in anticipation of
litigation. See United States v. Kelsey-Hayes, supra; Asarco,
supra.

 Document 5. Draft Report titled, Investigation of Dust

Deposition Patterns on Respirable Coal Mine Dust Samples. I
uphold the claim of privilege based on the deliberative process
but not on the attorney work product for the same reasons as
given for Document 4.

 Document 17. Note to File from Assistant U.S. Attorney

setting forth phone conversation with coal operators' attorney.
The claim of privilege based on the attorney-client relationship
is upheld. The note is to a file in MSHA's (the client's)
possession.

 Document 56. Letter from Associate Solicitor DOL and

Assistant Secretary DOL to U.S. Attorney. This document is

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clearly a communication from client to attorney, and as such is
privileged.

 Document 111. Page 9119 of a memorandum from MSHA District

Manager to MSHA Chief Division of Health containing notes of
Ronald Franks concerning an investigative program being developed
involving other potential violations of the dust sampling
program. I uphold the claim of privilege as being part of an
investigative file and not as attorney work product.

 Document 113. Draft of a letter from U.S. Attorney to

Peabody Coal Company with handwritten notes said to reveal
deliberations and thought processes of U.S. Government Attorneys.
I uphold the claim of privilege. The document appears to be part
of the work product of a government attorney.

 Document 119. MSHA internal memo concerning AWC

investigation including information prepared for the Secretary
reflecting opinions of Agency officials. I uphold the Secretary's
claim based on deliberative process privilege.

 Document 130. Letter from U.S. Attorney to MSHA concerning

criminal investigation. The document is privileged as an
attorney-client communication.

 Document 131. Memorandum for the Secretary from the

Assistant Secretary dated April 12, 1991, concerning potential
agency action subsequent to the citations. The document is
protected as part of the deliberative process. (It is not shown
to be part of the attorney work product).

 Document 132. Memorandum from Associate Solicitor DOL to

Deputy Solicitor concerning criminal matters in AWC cases. The
document is protected as part of the attorney work product.

 Document 133. Memorandum from Assistant Secretary to Acting

Secretary concerning criminal matters involving AWCs. The claims
of privilege based on the deliberative process and investigative
files are upheld.

 Document 134. Memorandum from MSHA Chief Office of

Investigation to Supervisory Special Investigator concerning data
for U.S. Attorney. The privilege based on the document being part
of an investigative file is upheld.

 Document 135. Memorandum for MSHA District managers titled

"Special Investigation" concerning direction and development of
potential criminal investigation. This document is privileged as
part of the Government's investigative files. It is not shown to
be part of any deliberative process.

 Document 136. Letter from U.S. Attorney to counsel for

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trial litigation SOL. Although the description of the document
does not at all indicate the subject matter of the letter, I
assume that it is relevant to these cases and concerns the
alleged dust sample alterations. It is privileged as a
confidential communication from attorney to client.

 Document 137. Memorandum for the Secretary from the

Solicitor titled "Peabody Dust Fraud Investigation." This also is
privileged as a confidential communication from attorney to
client.

 Document 138. Memorandum from Associate Solicitor to MSHA

Administrator for Coal Mine Safety and Health concerning referral
of special investigation to U.S. Attorney. This document is
privileged as a confidential communication from attorney to
client.

 Document 141. Memorandum from Associate Solicitor to

Solicitor titled "Peabody Dust Fraud Investigation." This
document is privileged as part of the attorney work product.

 Document 142. Memorandum from Acting Counsel for Trial

Litigation to Associate Solicitor regarding Dust Fraud
Investigation. This document is privileged as part of the
attorney work product.

 Document 145. Memorandum from Acting counsel for Trial

Litigation to Associate Solicitor concerning AWC criminal
investigation. This document is privileged as part of the
attorney work product.

 Document 146. Memorandum from Administrator Coal Mine Safety

and Health concerning special investigation and referral of cases
to U.S. Attorney. This document is privileged as part of a
government investigative file.

 Document 147. Letter from Administrator Coal Mine Safety and

Health and Associate Solicitor to U.S. Attorney concerning AWC
Criminal investigation. This document is privileged as a
confidential communication from client to attorney.

  Document 148. Memorandum from MSHA Special Investigator to

Chief Office of Investigations concerning referral of tampered
dust samples to U.S. Attorney. This document is privileged as
part of the deliberative process and the government investigative
file.

 Document 149. Unsigned document giving the status of a

special investigation of AWC indicating developments and
potential direction of criminal investigation. This document is
privileged as part of the deliberative process and the
government's investigative file.

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Document 152. List of mine operators and AWC occurrences prepared
at the direction of and for the assistance of the U.S. attorney.
This document is privileged as part of the attorney work product
and as part of the investigative file.

 Document 155. List of mine operators with handwritten marks

prepared at the direction of and for the assistance of the U.S.
Attorney. This document is privileged as part of the attorney
work product.

 Document 156. List of mine operators and AWC occurrences

prepared at the direction of and for the assistance of the U.S.
Attorney. This document is privileged as part of the attorney
work product.

 Document 157. Memorandum concerning criminal investigation

and studies to be performed to assist the U.S. Attorney in
criminal investigation of possible dust tampering. This document
is privileged as part of the attorney work product.

 Document 160. Memorandum from Assistant Secretary to

Secretary concerning AWC investigation discussing past
deliberations and potential future actions of Agency. This
document is privileged as part of the deliberative process.

 Document 200. Note to file concerning FOIA request which

includes advice received from SOL. This document is privileged as
including confidential communication from attorney to client.

 Document 201. Memorandum for District Mangers from Chief

Division of Health concerning processing of dust samples and
referring to investigative program being developed. This document
is privileged as part of the investigative file.

 Document 203. Notes of telephone conversation with MSHA

Arlington Health Division concerning new void code for dust
samples reflecting opinions and deliberations of Agency
officials. This document is privileged as part of the
deliberative process.

 Documents 326, 327, and 328. These were originally described

as a printout of dust samples, a printout of "AWC tally," and a
printout of certified dust samplers. The privilege claimed for
each document was work product, but there was no indication that
they were prepared in anticipation of litigation. However, the
affidavit of Robert Thaxton, attached as Exhibit 1 to Deputy
Assistant Secretary Hugler's affidavit states that each of these
documents was prepared at the request of United States Attorneys'
offices and is related to criminal investigations. On the basis
of Thaxton's amended description, I hold these documents are
privileged as part of the attorney work product.

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Document 339. Document titled "AWC Test Case" prepared by
counsel for Trial Litigation SOL. This document is privileged is
part of the attorney work product. (There is no indication that
it is a confidential communication to the agency-client).

 Document 340. This document was prepared by attorneys in SOL

office titled "Dust Case (Civil)." It is privileged as part of
the attorney work product.

 Document 365. Letter 3-16-90 from G. Tinney to Dr. Warren

Myers re-draft report on sampling filter abnormalities reflecting
deliberations and opinions prior to completion of Report
(Document No. 2). This document is privileged as part of the
deliberative process.

 Document 366. Letter from G. Tinney to Dr. Warren Myers

redraft report on sampling filter abnormalities. This document is
privileged as part of the deliberative process.

 Document 367. Draft of report of Dr. Myers and Allen Wells

with handwritten notations reflecting Agency thought processes
and deliberations concerning altered dust samples. This document
is privileged as part of the deliberative process.

 Document 384. Notes of Robert Thaxton MSHA of conference

call with U.S. Attorney and SOL, includes discussion of opinions
of agency officials and direction of investigation. This document
is privileged as part of the investigative file.

 Document 394. Monthly Planner Calendars maintained by Robert

Thaxton December 1989 to January 1991, including information
concerning the direction of criminal investigation of altered
dust samples. This document is privileged as part of the
investigative file.

 Document 401. File marked PHTC Report containing draft of

PHTC study and deliberations prior to PHTC report identified as
Document No. 1. This document is privileged as part of the
deliberative process.

 Document 402. Report titled "Tampered Samples Summary for

Southern West Virginia" prepared for U.S. Attorney's Office. This
document is privileged as part of the attorney work product.

 Document 403. Notes of telephone conversation between G.

Tinney and Robert Thaxton discussing AWC investigation and
including opinions and deliberations of agency and advice
received from Solicitor. This document is privileged as part of
the deliberative process.

 Document 406. 19 Manila File Folders containing documents

prepared at the request of the U.S. Attorneys' Offices in

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connection with ongoing criminal investigations. The Secretary
has withdrawn her claim of privilege with respect to certain
portions of this document as detailed in Attachment A to the
Affidavit of Deputy Assistant Secretary Hugler. The remaining
documents are privileged as part of the attorney work product.

 Document 407. 1991 Monthly Planner Calendar Robert Thaxton

including information concerning the direction of the criminal
investigation of altered dust samples and indicating the thought
processes and deliberations of the Agency. This document is
privileged as part of the investigative file.

 Document 424. Draft titled "List of Tables" 9/29-10/5/89

with notations indicating results of Agency testing of dust
filters preliminary to report identified as Document No. 1. This
document is privileged as part of the investigative file.

 Document 426. Monthly planning calendars of Robert Thaxton

1988 to January 1990 including information regarding the criminal
investigation of altered dust samples. The documents are
privileged as part of the investigative file.

 Document 441. Letter April 4, 1989 to FBI from Robert

Thaxton concerning respirable dust samples submitted to FBI in
ongoing criminal investigation. This document is privileged as
part of the investigative file.

                                   X

                SECRETARY DIRECTED TO SUBMIT DOCUMENTS
                       FOR IN CAMERA INSPECTION

 In Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert

denied, 415 U.S. 977 (1974), the court stated at 826 that it
"will no longer accept conclusory and generalized allegations of
exceptions [in FOIA] . . . but will require a relatively detailed
analysis in manageable segments." This direction was repeated in
Coastal States Gas Corp., at 861. In the Motion filed by Kentucky
Carbon, et al., counsel suggests as an alternative to ordering
production of the documents that I should conduct an in camera
inspection to determine which documents or portions of documents
are truly privileged. The Secretary agrees to an in camera
inspection of any document concerning which I cannot determine
from the Secretary's description the validity of the privilege
asserted, with the exception of certain portions of Document 406
which involve grand jury investigations.

 For the reasons given by Judge Gesell in Military Project v.

Bush, 418 F.Supp. 876 (D.D.C. 1976), I am reluctant to order an
in camera inspection of documents claimed to be privileged. Judge
Gesell was apparently unsuccessful however in obtaining

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more specificity in document description, see 418 F.Supp. 880,
and I would not expect greater success if I ordered the Secretary
to provide better and more complete description of some of the
documents. I conclude that an in camera inspection will save time
and trouble. Therefore, I will order the Secretary to submit the
following documents to me for an in camera inspection to
determine whether the privileges were properly invoked.

 Document 55. Letter 11-1-89 from Chief General Litigation

and Legal Advice Section, Criminal Division, DOJ to U.S.
Attorney.

 Document 112. Undated memorandum setting forth substance of

meeting with U.S. Attorney involving development of criminal
investigation.

 Document 116. Letter 1-18-91 from J. Davitt McAteer,

Occupational Safety and Health Law Center to Assistant Secretary
with handwritten notes. The letter itself is not privileged, but
the handwritten notes may be.

 Document 120. Undated draft briefing paper reflecting "the

thought processes and deliberations of the Agency."

 Document 139. Unsigned note to file concerning case referral

to U.S. Attorney's Office.

 Document 143. Undated memorandum concerning criminal AWC

investigations.

    Document 144. Sample citation and memorandum concerning

AWCs.

 Document 154. Undated memorandum concerning criminal AWC

investigation "which apparently was prepared prior to the
issuance of the citations and which concerns the thought
processes and scope of direction of investigative activities."

 Document 161. Unsigned handwritten notes concerning AWC

investigation.

 Document 169. Unsigned handwritten notes concerning April

18, 1991, meeting with MSHA.

    Document 350. AWC statistical breakdown.

 Document 353. Printout summary of altered dust samples with

handwritten date of October 13, 1989, concerning criminal
investigation.

 Document 375. Memorandum 3-15-89 from Leighton Farley to

Robert Nesbit (not identified) re: request for direct referral to

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U.S. Attorney, possible tampering with respirable dust samples,
Eastern Associated Coal Co.

 Document 425. Unsigned notes of Andrew Gero, not otherwise

identified, with handwritten notations.

                                  XI

                 SECRETARY'S CLAIM OF PRIVILEGE DENIED
                      ORDER TO PRODUCE DOCUMENTS

 With respect to the following documents, the Secretary's

claim of privilege is not justified by the document descriptions,
and the Secretary is ORDERED to make them available to
Contestants by placing them in the Document Depository.

 Document 116. The letter without the handwritten notes

(concerning the handwritten notes, I have directed the Secretary
to submit the document for in camera inspection).

 Document 163. Briefing materials for the Secretary for use

in preparation for Secretary's testimony before Congress. These
documents obviously are not part of the work product. There is no
indication that they were prepared in anticipation of litigation.
Their relationship to the deliberative process is tenuous and
wholly based on conclusions.

 Document 176. FBI "invoice" to the PHTC. Nothing in the

description indicates that the document is part of the
deliberative process or investigative files.

 Document 329. Printout listing of AWC sampling and documents

used to prepare list. Nothing in the description of this document
reportedly shows that it is part of the attorney work product,
prepared in anticipation of litigation.

 Accordingly, IT IS ORDERED:

 1. The Secretary's claim of privilege is upheld with respect

to Documents 3, 4, 5, 17, 56, 111, 113, 119, 130, 131, 132, 133,
134, 135, 136, 137, 138, 141, 142, 145, 146, 147, 148, 149, 152,
155, 156, 157, 160, 200, 201, 203, 326, 327, 328, 339, 340, 365,
366, 367, 384, 394, 401, 402, 403, 406, 407, 424, 426, 441.

 2. The Secretary shall submit the following documents to me

for in camera inspection: 55, 112, 116 (handwritten notes), 120,
139, 143, 144, 154, 161, 169, 350, 353, 375, 425.

 3. The Secretary shall produce the following documents: 116

(letter without notes), 163, 176, 329.

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4. After I have reviewed the documents submitted for in
camera inspection, I will determine which privileged documents,
if any, are to be disclosed as being essential to the adequate
preparation of the operators' cases.

                                   James A. Broderick
                                   Administrative Law Judge