Asarco, Inc.

Plain-English summary

Asarco sought documents from the Secretary in consolidated contest and discrimination proceedings. The judge held that most miner statements and agency memoranda were protected by the informant's privilege or the deliberative process privilege. The judge nevertheless required the Secretary to provide Asarco with a copy of the complainant David Hopkins's interview transcript, with necessary redactions, because Hopkins's identity as an informant was already known. The motion to compel was therefore denied except for that transcript.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(1) and (c)(2); 30 U.S.C. § 802(g); 29 C.F.R. §§ 2700.2 and 2700.62
• Outcome: The motion to compel was denied in part and granted in part for a redacted copy of Hopkins's interview transcript.
• Key point: The informant's privilege protected most discovery material, but it was waived as to a complainant's own interview transcript when the complainant's identity as an informant was already known.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

                         May 17, 1995

ASARCO, INC., : CONTEST PROCEEDINGS
Contestant :
: Docket No. CENT 95-8-RM
v. : Citation 4444361; 9/20/94
:
: Docket No. CENT 95-9-RM
SECRETARY OF LABOR, : Citation 4328815; 9/21/94
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Sweetwater Mine
Respondent : Mine I.D. 23-00458
:
:
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-122-DM
on behalf of :
DAVID HOPKINS, : Sweetwater Mine
Complainant :
: Mine I.D. 23-00458
v. :
:
ASARCO, INCORPORATED, :
Respondent :

   ORDER DENYING, IN PART, ASARCO'S MOTION TO COMPEL


 Asarco, Inc. filed a request for the production of documents

in these proceedings. In response, the Secretary of Labor pro-
vided certain documents but refused to provide others on the
basis of the informant's privilege, the deliberative process
privilege, and the attorney-client privilege. Subsequently,
Asarco filed a motion to compel production of three types of doc-
uments: (1) statements of miners made to MSHA investigators; (2)
a special investigation report of the discrimination complaint
prepared by Ms. Judy Peters, an MSHA employee; and (3) a case
analysis prepared by Ms. Peters. The Secretary opposed the mo-
tion to compel. By order dated May 4, 1994, I ordered the Sec-
retary to provide, for my in camera inspection, a copy of each
contested document. There is no dispute that the requested mate-

Page 2

rial is relevant to these proceedings. For the reasons discussed
below, Asarco's motion to compel is denied, in part, and granted,
in part.
I. Statements of Miners

 During MSHA's investigation of Mr. Hopkins' discrimination

complaint, Ms. Judy Peters, an MSHA investigator, interviewed a
number of miners. During these interviews, she either tape-re-
corded the interview or took written statements. The taped in-
terviews were typed in question and answer format. These inter-
view transcripts and written statements (collectively referred
to as "statements") were forwarded to me for my review. After
reviewing each of the statements, I conclude that all but one are
protected by the informant's privilege.

 The Commission has stressed the importance of the inform-

ant's privilege under the Mine Act. Bright Coal Co., 6 FMSHRC
2520 (November 1984). The Commission held that this privilege is
applicable to the furnishing of information to government offi-
cials concerning violations of the Mine Act. 6 FMSHRC at 2524.
It is the name of the informant, not the contents of the state-
ment, that is protected, unless disclosure of the contents would
tend to reveal the identity of an informant. Asarco, 12 FMSHRC
2548, 2554 (December 1990) ("Asarco I"), citing Roviaro v. United
States, 353 U.S. 53, 60 (1957). The Secretary bears the burden
of proving facts necessary to support the existence of the privi-
lege. Asarco I, 12 FMSHRC at 2553.

 Each of the statements at issue in this case contains the

name of the informant making the statement. In addition, given
the detail contained in the statement, I find that disclosure of
the contents of each statement would tend to reveal the identity
of the informant. Finally, each statement contains the names of
other miners, many of whom are also informants. Accordingly, I
conclude that each statement is protected by the informant's
privilege. Redacting out names and identifying sentences or
paragraphs is not feasible because of the detailed nature of
the statements. It would not be possible for the Secretary to
provide Asarco with meaningful portions of the statements with-
out revealing the identity of one or more informants.

 Because the informant's privilege is a qualified privilege,

I must perform a balancing test to determine if Asarco's need for
the statements is greater than the Secretary's need to maintain
the privilege to protect the public interest. Bright, 6 FMSHRC
at 2526. The burden is on Asarco to prove facts necessary to
show that disclosure of the statements is necessary to a fair
determination of the case. Id. Factors to be considered in con-

                           2

Page 3

ducting this balancing test include whether the Secretary is in
sole control of the requested material and whether Asarco has
other avenues available from which to obtain the substantial
equivalent of the requested information. Id. In performing the
balancing test in this case, the issue is whether Asarco can get
substantially the same information by deposing those miners who
have knowledge of the events leading up to Mr. Hopkins' dis-
charge. Asarco, 14 FMSHRC 1323, 1331 (August 1992)("Asarco II")

 I conclude that Asarco could get substantially the same

information by interviewing or deposing miners at the Sweetwater
Mine who worked with Mr. Hopkins and with the 1311 High Scaling
Rig that is the subject of these proceedings. Those are the in-
dividuals with knowledge of the events that are important to
these cases and Asarco can get substantially the same information
by talking to those individuals.

 Asarco maintains that it believes that it is "quite likely"

that some of the statements contain information that is favorable
to its position in these cases. Asarco states that such informa-
tion is essential for a fair determination of the issues. In
Bright, the Commission held that "an informer is entitled to
anonymity, regardless of the substance of the information he fur-
nishes." 6 FMSHRC at 2524. The "applicability of the informer's
privilege to the Mine Act does not rise or fall based on the sub-
stance of a person's communication with government officials con-
cerning a violation of the law." 6 FMSHRC at 2525. Accordingly,
Asarco's contention is unfounded.

 I conclude, however, that Asarco is entitled to a copy of

the statement made by Mr. Hopkins. This proceeding is being
brought by the Secretary on Mr. Hopkins' behalf. There can be no
doubt in anyone's mind that Mr. Hopkins is an informant and that
his identity as an informant is known to Asarco because a dis-
crimination complaint was filed on his behalf. The Secretary
would not file a discrimination proceeding without interviewing
the complainant. Accordingly, I conclude that the informant's
privilege has been waived with respect to Mr. Hopkins.

My holding is consistent with the Commission's decision in
Secretary on behalf of Gregory et. al. v. Thunder Basin Coal Co.
,
15 FMSHRC 2228 (November 1993). The Commission held that the
informant's privilege is not waived when an unfair labor practice
charge brought by the United Mine Workers Union names a number of
miners in the complaint. 15 FMSHRC at 2235-36. The inclusion of
a particular miner in the complaint "is not tanta- mount to
disclosure of [the miner] as an informant." 15 FMSHRC at 2236.
The unfair labor practice action could have been brought without
obtaining information from the miner in question. In the instant

                           3

Page 4

 Asarco will be entitled to the names of all the Secretary's

witnesses two days before the trial. 29 C.F.R. ' 2700.62; Asarco
II, 14 FMSHRC at 1331. At or about that time, Asarco may be able
to obtain the statement of any miner who will be called as a wit-
ness in order to refresh that witness's recollection or to
impeach his testimony. Asarco II, 14 FMSHRC at 1331. Asarco's
right to the statements of miner witnesses at the time of trial
is a separate and procedurally distinct issue from the discovery
issue presented here. Id. (citation omitted).

II. Special Investigation Report Prepared by Ms. Peters

 The special investigation report ("report") prepared by

Ms. Peters consists of two parts: a summary of the interviews
and statements Ms. Peters took of miners and a conclusion that
Asarco violated section 105(c) of the Mine Act when it terminated
Mr. Hopkins. The report recommends that a complaint be filed on
his behalf. The report, which is in the form of a memorandum,
was prepared by Ms. Peters and is directed to Raymond C. Austin,
MSHA District Manager for the South Central District, through
Jimmie L. Jones, Supervisory Mine Safety and Health Specialist.
I find that this document is protected from disclosure by the
informant's privilege and the deliberative process privilege.

 Most of the report is a summary of the statements of miners

described in section I, above. This summary also includes the
summary of statements made to Ms. Peters by a few management em-
ployees. The definition of "miner" under the Mine Act includes
"any individual working in a ... mine." 30 U.S.C. ' 802(g); 29
C.F.R. ' 2700.2. Thus, the informant's privilege applies to
statements made to the government by both management and hourly
employees. For the reasons set forth in section I above, I be-
lieve that these summaries are protected by the informant's priv-
ilege. In addition, for the reasons discussed above, Asarco's
need for the statements is not as great as the Secretary's need
to maintain the privilege to protect the public interest. Asarco
has access to all of these individuals and could simply depose or
interview them.

 The remainder of the report is protected by the deliberative

process privilege. This privilege protects communications be-
tween subordinates and supervisors within the government that are
"antecedent to the adoption of an agency policy." Contests of

case, however, there can be no dispute that
Mr. Hopkins is an informer.

                            4

Page 5

Respirable Dust Sample Alternation Citations, 14 FMSHRC 987, 992
(June 1992), quoting Jordan v. Dept. of Justice, 591 F.2d 753
(D.C. Cir. 1978). The communications must be "related to the
process by which policies are formulated." Id. The conclusion
and recommendation section easily fits within the deliberative
process privilege. This section of the report contains the rec-
ommendation of Ms. Peters, a subordinate, to Mr. Austin, a super-
visor, that the agency pursue this case. It is not the final
agency decision.
I also conclude that Asarco's need for the recommendation
section does not outweigh the Secretary's interest in keeping it
confidential. Ms. Peter's one page recommendation puts her gloss
on the interviews she conducted and states that the information
obtained during her investigation "indicates that a violation of
Section 105(c) occurred." It is simply her opinion and, since
this proceeding is de novo, it will carry no weight. The Secre-
tary's interest in keeping its decision making process confiden-
tial far outweighs Asarco's need for this section of the report.

III. Case Analysis

 Counsel for the Secretary states that a case analysis pre-

pared by Ms. Peter does not exist. The only case analysis she
prepared is the report discussed in section II, above. The Sec-
retary provided for my in camera review, a two-page "case analy-
sis" prepared by an analyst in MSHA's Arlington, Virginia, head-
quarters. As it does not contain any details, it appears that
it may be a transmittal memorandum for the report prepared by
Ms. Peters. In any event, like the report, it is protected by
the deliberative process privilege. It is a memorandum prepared
by a subordinate to a supervisor that recommends that a dis-
crimination complaint be filed against Asarco on behalf of
Mr. Hopkins. The Secretary's interest in keeping its decision-
making process confidential outweighs Asarco's need for this
document.

                         ORDER

The portion of the report that summarizes the statements of
miners also summarizes interviews with Michael R. Roderman, an
MSHA inspector, and Michael P. Sheridan, an MSHA engineer. I
find that these summaries are protected by this privilege because
they reflect the deliberative process and are not purely factual
in nature. I believe that report must be viewed as a whole and
that the summary of Ms. Peters' interviews of MSHA officials is
part of the decision making process rather than merely a factual
predicate for the decision to bring these cases. See, Respirable
Dust Cases, 14 FMSHRC at 992-93.

                           5

Page 6

 Accordingly, Asarco's motion to compel is DENIED, except

with respect to the transcript of the taped interview of
Mr. Hopkins taken on September 19, 1994. The Secretary is
ORDERED to provide counsel for Asarco with a copy of this tran-
script within ten days of the date of this order. The Secretary
should redact the names of other informants that are contained in
the transcript and, to the extent necessary, those portions of
the transcript that would tend to reveal the identity of an
informant.

                         Richard W. Manning
                         Administrative Law Judge

Distribution:

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Depart-
ment of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037

RWM

                           6