The Coteau Properties Co.

Plain-English summary

The Secretary of Labor, on behalf of Royal Sargent, alleged that The Coteau Properties Co. discriminated against him under section 105(c)(1) of the Mine Act. The company asked for documents and answers to interrogatories that the Secretary withheld based on informant, deliberative-process, and investigative privileges. Judge Michael E. Zielinski found that the Secretary had not shown that the entire set of interview statements or the factual portions of the investigative report were privileged. He conditionally granted the motion to compel as to those materials and part of the exhibit list, allowing the Secretary to submit evidence supporting continued withholding. He denied the remaining requests and interrogatories 7 and 16 at that stage.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1)
• Outcome: Discovery relief was conditionally granted in part, and the remaining motion to compel requests were denied at that stage.
• Key point: Privilege claims required evidence showing why particular factual material would identify an informant or reveal protected deliberations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      OFFICE OF ADMINISTRATIVE LAW JUDGES
                               2 SKYLINE, Suite 1000
                               5203 LEESBURG PIKE
                          FALLS CHURCH, VIRGINIA 22041

                                      June 27, 2000

SECRETARY OF LABOR : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2000-96-D
ON BEHALF OF ROYAL SARGENT, : DENV CD 99-03
Complainant :
v. :
:
THE COTEAU PROPERTIES CO., : Freedom Mine
Respondent : Mine ID 32-00595

         ORDER DENYING MOTION TO COMPEL, IN PART, AND
       CONDITIONALLY GRANTING MOTION TO COMPEL, IN PART

    This case is before me on an amended complaint filed by the Secretary of Labor on

behalf of Royal Sargent, alleging that Respondent, The Coteau Properties Co, had discriminated
against him in violation of section 105(c)(1) of the Federal Mine Safety and Health Act of 1977
(the "Act"), 30 U.S.C. § 815(c)(1). Respondent has moved to compel production of certain
documents, to which the Secretary has asserted claims of privilege, and responses to two
interrogatories that the Secretary has objected to on grounds of relevance and privilege. For the
reasons set forth below, the motion is denied, in part, and granted, in part. However, before
ordering production, the Secretary is afforded an opportunity to supply evidence demonstrating
the applicability of privileges with respect to certain withheld documents. The evidence may
consist of the documents themselves and/or an affidavit and may be submitted in camera to the
extent necessary to preserve a privilege.

    In response to discovery requests, the Secretary interposed objections on grounds of

privilege to some twenty-nine documents that were later identified in a "Privilege Log." The
privileges asserted were the deliberative process, investigative and informant’s privileges. Upon
further review, eight of those documents were supplied to Respondent. The Secretary also
objected to two interrogatories on grounds of relevance and privilege, although the deliberative
process and investigative privileges are no longer asserted. This Order will first address the
documents, which will be discussed in two groups, "confidential employee interview statements"
and the "investigative report package."

Confidential Employee Interview Statements

   The Secretary claimed the informant’s privilege and declined to produce sixteen witness

statements described as "confidential employee interview statements." Respondent has moved to

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compel production of those documents. The Commission has recognized the importance of the
informant’s privilege in effectuating the purposes of the Act. Secretary obo Logan v. Bright
Coal Co., Inc., 6 FMSHRC 2520 (Nov. 1984). It is the identity of the informant that is
protected by the privilege, not the contents of a statement, except for those portions of the
content that would tend to identify an informant. ASARCO, Inc., 12 FMSHRC 2548, 2553-54
(Dec. 1990) (ASARCO I). It is the Secretary’s burden to establish that the privilege applies. Id.
Because the privilege is qualified, a party may seek to overcome it by demonstrating that the
information is necessary for a fair determination of the case and that its need for the information
outweighs the Secretary’s need to maintain the privilege. Here, Respondent challenges only
application of the privilege and does not seek any information to which the privilege properly
applies.

   The Secretary asserts, in opposition to the motion, that:

           The contents of these statements, while factual in nature, are so
   intertwined with the identity of the employee that release of the statement would
   undoubtedly identify the employee. In focusing on the allegations set forth by the
   complainant in his complaint, MSHA interviewed a select number of employees
   at Respondent’s mine site. The ensuing interviews contain numerous references
   to information that is specific to certain employees, such as job titles, individual
   duties and responsibilities, shift assignments, supervisors, personnel actions and,
   in some cases, the identity of other informants. * * * It is simply not possible for
   the Secretary to provide Respondent with meaningful portions of the statements
   without revealing the identity of one or more informants.1

As the Commission observed in ASARCO, Inc., 14 FMSHRC 1323, 1329 (August 1992)
(ASARCO II):

   It is the judge, not the Secretary, who must determine whether the privilege
   obtains with respect to a particular document or group of documents and he must
   be provided with evidence sufficient to make such a determination. In this case,
   the judge was required to determine whether the statement, which did not contain
   the name of an informant, would tend to reveal the identity of the informant.
   Such an analysis may not be possible unless the party invoking the privilege
   provides the judge with facts that explain how disclosure of the subject material
   would tend to reveal that informant’s identity. In general, a "bald assertion of
   privilege is insufficient . . . since a trial court must be provided with sufficient
   information so as to rule on the privilege claim." 4 J. Moore, J. Lucas & G.
   Grotheer, Moore’s Federal Practice ¶ 26.60[1] (2d ed. 1991). * * *




   1
           Opposition at p. 5.

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     While the Secretary’s argument may go somewhat beyond a bald assertion of the

privilege, it falls far short of presenting factual evidence from which application of the privilege
can be determined, aside from information directly identifying an informant, e.g. name, address,
etc. Several of the statements withheld are quite lengthy. The Secretary argues, for example,
that all parts of twelve and sixteen page statements that are admittedly "factual in nature" are so
intertwined with the identity of the informant as to be covered by the privilege. Information,
such as, job title and duties and responsibilities may be privileged if unique to the informant, or
to such a small group of persons that the informant would tend to be identified. Without
competent evidence establishing that the entire statement consists of such information and that it
would disclose an informant’s identity, however, the Secretary clearly has not satisfied her
burden. Portions of a statement that disclose the identity of other informants would also be
privileged. However, if a statement identifies other individuals who may have knowledge of
certain matters, the names of such individuals would not be privileged, solely because they may
also have been interviewed in conjunction with the investigation.

    Because the Secretary has not satisfied her burden of establishing that the entirety of each

statement is covered by the privilege, the motion to compel as to the statements is conditionally
granted. Before ordering the Secretary to produce the statements, with only directly identifying
information redacted, however, the Secretary will be given an opportunity to provide evidence
that any other portion of each of the withheld statements is covered by the privilege. The
Secretary may submit copies of the statements for in camera review and/or may submit an
affidavit by a person with knowledge of the facts relied upon. If the contents of an affidavit
would tend to disclose privileged information, it too could be submitted in camera. See,
ASARCO II, 14 FMSHRC at 1330, 1333. The Secretary’s representatives will determine the
precise nature of any evidence to be submitted in support of the privilege claim. However,
because of the volume of material involved, it would appear difficult to sustain the burden as to
the entirety of each of the statements without submitting both copies of the statements and an
affidavit.

The Investigative Report Package

    The other documents at issue consist of a 41 page "Special Investigation Report" and

related documents; a summary analysis; a list of exhibits; a list of persons interviewed; and, the
assignment control worksheet. In addition to the informant’s privilege, the deliberative process
and investigative privileges were variously interposed as objections to the production of these
documents.2

   2
             Respondent contends that the deliberative process and investigative privileges have

not been properly invoked. The Secretary submitted an affidavit by Marvin W. Nichols,
Administrator for Coal Mine Safety and Health, Mine Safety and Health Administration, U.S.
Department of Labor, invoking privileges with respect to the five documents at issue. I find that the
affidavit is sufficient to invoke the claimed privileges. See, In Re: Contests of Respirable Dust
Sample Alteration Citations, 14 FMSHRC 987, 999-1001 (June 1992).

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   The deliberative process privilege was first discussed by the Commission in In Re:

Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 990-93 (June 1992).
Following a brief review of the origin of the privilege the Commission observed:

          The breadth of the privilege is described by the court in Jordan v. U.S.
   Dept. of Justice, 591 F.2d 753 [772] (D.C. Cir. 1978):

           This privilege protects the ‘consultative functions’ of government
           by maintaining the confidentiality of ‘advisory opinions,
           recommendations and deliberations comprising part of the process
           by which governmental decisions and policies are formulated’
           (citations omitted). The privilege attaches to inter- and intra-
           agency communications that are part of the deliberative process
           preceding the adoption and promulgation of an agency policy.

To be covered by the privilege, the material must be both "pre-decisional" and "deliberative."
Id. Purely factual material that does not expose an agency’s decision making process is not
covered by the privilege, unless it is so inextricably intertwined with deliberative material that its
disclosure would compromise the confidentiality of the deliberative information that is entitled
to protection. It is the Secretary’s burden to prove that the privilege applies to material it seeks
to protect from disclosure. Id. 14 FMSHRC at p. 993. Consolidation Coal Co., 19 FMSHRC
1239, 1246-47 (July 1997). A party seeking to overcome the privilege has the burden of
demonstrating that its need for the information outweighs the governmental interest in protecting
it from disclosure.

    Respondent contends that the privilege applies only to writings directly involved in the

formulation of agency "policy" -- that the decisions made with respect to a discrimination
complaint involve only "the application of already-established law and policy to facts"3 and are
not covered by the deliberative process privilege. I reject that contention and hold that the
Secretary’s decision making process, by which a determination is made whether or not to initiate
a discrimination proceeding under the Act, is the type of governmental decision to which the
deliberative process privilege applies. See, In Re: Contests of Respirable Dust Sample Alteration
Citations, 14 FMSHRC at 993.

    The Secretary has represented, preliminarily, that none of the documents associated with

the report contains factual information that is not also contained in the report.4 This
representation should be confirmed, by affidavit, in response to this Order. Because it appears
that there is no additional factual information contained in the other documents, the major
portions of which clearly appear to be covered by the informant’s and deliberative process

   3
           Motion to Compel, at p. 6.
   4
           A conference call was held with the parties’ representatives on June 26, 2000.

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privileges, the motion as to those documents is denied, with one exception.5 The exhibit list
identifies all exhibits in the investigative file, not just those that may have been referenced in the
report. As a consequence, it is possible that the list may include items in addition to those at
issue in this motion that have not already been produced. The Secretary is directed to provide,
for in camera review, a list of any such items along with any evidence that the existence of such
an item on the exhibit list is protected from disclosure.

    The Secretary has described the Special Investigative Report as consisting of an

introduction, a summary of witness statements and a conclusion. The conclusion section appears
likely to be protected by the deliberative process privilege, in that it would normally consist of
the recommendations, analysis and conclusions of the investigators. However, the factual
portions of the report, the summary of witness statements and other information, would appear
to be information to which Respondent is entitled, at least to the extent that it does not disclose
the identity of an informant. Aside from the portion of the report consisting solely of the
investigators’ analysis, recommendations and conclusions, the Secretary has not satisfied her
burden of demonstrating the applicability of the privilege and the motion, as to the report, is
conditionally granted.

   Before ordering the Secretary to produce the report, with only the investigators’ analysis,

recommendations and conclusions redacted, however, the Secretary will be given an opportunity
to provide evidence that any other portion of the report is covered by the privilege. The
Secretary may submit a copy of the report for in camera review and/or may submit an
appropriate affidavit.

The Interrogatories

    Interrogatory numbered 7 consisted of the following request:

            Describe the complete basis for the Secretary’s determination,
    communicated to Royal Sargent and Coteau in the letter from Sandra L.
    Yamamoto, dated December 30, 1998 * * * , "that a violation of Section 105(c)
    has not occurred."

The Secretary objected to the interrogatory on grounds of relevance and deliberative process,
investigative and informant’s privileges. The deliberative process and investigative privileges
are no longer asserted.

    5
             The Secretary has also interposed an objection on grounds of “investigatory files

privilege” to production of the report, the summary and the list of exhibits. Respondent argues that
the investigative privilege is no broader than, and is subject to the same limitations as, the deliberative
process privilege. As to the documents at issue here, I agree with Respondent. The issues raised by
the motion to compel will be decided upon application of the deliberative process and informant’s
privileges.

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   Interrogatory numbered 16 read:

           Identify each person * * * who participated on behalf of the Secretary in
   the determination, after the reopening of the investigation, that a violation of
   Section 105(c) of the Mine Act had occurred. If the determination that
   discrimination had occurred is claimed to ultimately have been made by one
   person, specifically identify that person.

The secretary objected on grounds of relevance and deliberative process privilege. Only
relevance is now asserted as an objection.

     The fact that the Secretary initially concluded that no discrimination had occurred and

later reached an opposite conclusion, as well as the particular rational for each conclusion and
the identities of individuals who participated in the latter decision are not relevant. However,
factual information, including potentially exculpatory facts known to the Secretary at the time of
the initial decision, would certainly be relevant and cannot be withheld unless protected by the
informant’s privilege.

    It is likely that all factual information known to the Secretary at that point in the process

is included in the investigative report and the witness statements and/or in the information
already produced in response to discovery. As noted above, the statements must be produced
except to the extent that they are protected by the informant’s privilege and factual information
contained in the report must be disclosed, except to the extent that it is protected by the
informant’s or deliberative process privileges.

    If the Secretary can establish, by affidavit, that the facts known at the time that the initial

determination was made are included in the report and statements, Respondent will have
received all factual information to which it is entitled. Accordingly, the motion to compel
responses to interrogatories numbered 7 and 16 is denied, at this time, subject to a demonstration
that pertinent factual information responsive to interrogatory numbered 7 is included in the
report and statements.

                                   Conclusion and Order

     Respondent is generally entitled to relevant factual information in possession of the

Secretary that has properly been requested through discovery. The informant’s privilege may
bar access to factual information, but only to the extent that it identifies or tends to identify a
person who has provided information to the Secretary. The deliberative process privilege
protects from disclosure information regarding the Secretary’s pre-decisional deliberations,
information that is of marginal, if any, relevance and unlikely to be factual in nature. It is
possible that some factual information may properly be withheld pursuant to the deliberative
process privilege, if it would disclose privileged information, however, at this stage of the
litigation it is unclear whether any of the materials at issue fall within that category.

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    The motion to compel as to the Special Investigative Report, a portion of the exhibit list

and the Confidential Employee Interview Statements is conditionally granted. On or before
Friday, July 7, 2000, the Secretary may submit evidence establishing the applicability of the
informant’s and deliberative process privileges to any portions of the report, exhibit list and
statements that the Secretary continues to object to producing. That evidence should also
address whether there are additional facts known to the Secretary at the time of the initial
decision that are not included in the report and statements. On consideration of any such
evidence, a further order will be issued with respect to those documents.

    As to the remainder of the documents and interrogatories numbered 7 and 16, the motion

is denied.

                                          Michael E. Zielinski
                                          Administrative Law Judge

Distribution:

Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716 (Facsimile and Certified Mail)

James A. Lastowka, Esq., McDermott, Will & Emery, 600 13th Street, N.W., Washington,
D.C. 20006-3096 (Facsimile and Certified Mail)

/mh

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