Alcoa Alumina and Chemical, LLC

Plain-English summary

Diane Krock was the complainant in a Mine Act discrimination proceeding against Alcoa Alumina and Chemical. Alcoa asked the judge to compel the return of company emails that were in Krock's possession, while the Secretary argued that producing them could identify a miner who had provided information to MSHA. Judge David F. Barbour held that the existing record did not contain enough facts to establish the informant's privilege, but gave the Secretary 10 days to supplement the opposition with supporting facts or an explanation for an in camera submission. The judge stated that the privilege protects an informant's identity, not merely the information's content or format, and that Alcoa's motion would be granted if the Secretary could not supply an adequate factual basis.

Decision snapshot

• Cited standard: 29 C.F.R. § 2700.61
• Outcome: The Secretary was given 10 days to supplement the opposition to Alcoa's motion to compel; the discovery dispute was not finally resolved.
• Key point: An assertion of informant privilege requires facts showing how disclosure would identify the informant.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3868
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030
January 6, 2000

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 99-299-DM
ON BEHALF OF DIANE KROCK, : SC MD 99-09
Complainant :
: Point Comfort Facility
v. :
ALCOA ALUMINA AND CHEMICAL, : Mine ID 41-00320
LLC, :
Respondent :

              ORDER TO SUPPLEMENT OPPOSITION TO MOTION

    In this discrimination proceeding, brought by the Secretary on behalf of Diane Krock

against Alcoa Alumina & Chemical, L.L.C. (Alcoa), the company has moved to “compel the
Secretary . . . to return to Alcoa copies of Alcoa’s . . . electronic mail messages (‘e-mails’) which
were generated by and received by Alcoa employees . . . [and] which . . . are admittedly in
Complainant’s possession” (Motion to Compel 1). The Complainant has opposed the motion
and has asserted that the e-mails are protected from discovery by the informant’s privilege as
codified at 29 C.F.R. § 2700.61. Although I find below that she has not provided facts sufficient
to establish her claim of privilege, I will allow the Complainant additional time within which to
supplement her opposition.

                          BACKGROUND OF THE MOTION

                      (1) Shortly after the proceeding was initiated, counsel for
               Alcoa requested by letter that MSHA voluntarily send counsel a
               copy of the file the agency complied while investigating the
               Complainant’s discrimination charges;

                       (2) Counsel for the Secretary responded by forwarding
               selected portions of the file, but withheld certain parts she claimed
               were privileged;

                       (3) By subsequent letter, and following an inquiry by
               counsel for Alcoa, Counsel for the Secretary stated that she “with-
               held e-mail messages from a miner, which were given to . . . [the
               MSHA investigator] during the course of his investigation” (Alcoa
               Brief In Support of Motion 2, citing Exh. C);

Page 2

                      (4) Counsel for Alcoa protested and again requested the
              return of the e-mail messages;

                     (5) Counsel for the Secretary once more refused to send the
              e-mails, stating that she “[could] not turn over the e-mail messages
              without disclosing the identify [sic] of a government informant
              who provided a print out of the messages to MSHA” (Id., citing
              Exh. E).

                      (6) Alcoa then initiated a Request for Production of Docu-
              ments and the Secretary produced copies of e-mails from an Alcoa
              hourly employee, Miguel Monroy. The copies were dated from
              March 22, 1999 through March 24, 1999 and were from the Com-
              plainant to groups of Alcoa employees, including Monroy. Some
              of the e-mails contained attachments (Id., Exh. F). Alcoa main-
              tains the e-mails were printed from Monroy’s Alcoa-owned com-
              puter located at Alcoa’s facility and that Monroy admitted as much
              during his deposition (Id., 4);

                       (7) Respondent also maintains that during the same deposi-
              tion, Monroy identified an Alcoa fax cover sheet where by he sent
              4 pages of documents to an MSHA instigator by an Alcoa fax
              machine. A handwritten message of the cover sheet states: “Here
              is what you asked for. Hope this is enough”. The cover sheet
              states that it and the documents are being sent by “Mike Monroy”
              (Id., 4-5, Exh. G). When he was deposed the MSHA investigator
              confirmed the fax number on the cover sheet was his fax number.
              During his deposition Monroy agreed that only his handwriting
              appeared on the fax cover sheet (Id., 5, Exh. J 4). Questions
              regarding what Monroy might have sent to the investigator, indeed,
              whether or not he participated in the investigation, were repeatedly
              objected to by counsel for the Secretary on the basis the facts
              relating to such information were protected by the informant’s
              privilege (See Id. Exh. J 3 et seq.).

                               WHAT ALCOA WANTS

    Alcoa wants the e-mail messages that are in the possession of the Complainant to be

returned. It argues they are the property of the company. They were generated by Alcoa
equipment, were sent over Alcoa’s internal computer network and were received by Alcoa’s
employees. The company asserts that it is “likely” that information contained in the withheld
e-mails is the proprietary and confidential information of Alcoa. Further, the company asserts
the internal e-mails are business records of Alcoa and that the Complainant did not have the right
to obtain such records from an Alcoa employee without following proper discovery procedures or
without Alcoa’s consent. It asserts that regardless of the identification of the employee who

                                            2

Page 3

made the e-mails available to MSHA, they are the private property of the company and they must
be returned to Alcoa. Finally, at the very least, Alcoa asserts the e-mails should be returned in
redacted form to prevent the identification of the employee who made them available to MSHA
(Motion to Compel 5-6).

                          THE COMPLAINANT’S RESPONSE

     The Complainant responds that in fact she withheld 21 pages of e-mail messages from her

response to Alcoa’s first request for production of documents and from Alcoa’s informal request
for MSHA’s investigation file. The e-mail messages were withheld because their format and
content would identify the miner(s) who provided information to the MSHA special investigator
during the course of his investigation. On the other hand, the Complainant did turn over to Alcoa
all of the e-mail messages that Ms. Krock provided to MSHA, including those from Monroy.
Although the Complainant has waived the government informant’s privilege with respect to
Krock and to any information she has provided MSHA, it has not waived the privilege with
respect to any other miners (Complainant’s Response 2).

                                       THE RULING

    Counsel for the Secretary argues, and I agree, that in resolving the issues raised in the

motion, protection of the informant’s privilege must remain paramount. It bears repeating that it
is the well-established right of the government to withhold from disclosure the identity of
persons furnishing information of possible violations of law to enforcement officials. The
privilege is designed to protect the public interest by maintaining the free flow of information to
the government concerning possible violations and to protect the person supplying such
information from possible retaliation (Sec. Ex Rel Logan v. Bright Coal Co., Inc., 6 FMSHRC
2520, 2522-23 (November 1984)). Although this issue has arisen in the context of e-mail
messages, it is no different from a situation in which a miner gives an internal company
memoranda to an MSHA investigator and return of the memoranda would identify the informer.
In the latter instance, and, I believe in this, the identity of the informer must be protected,
provided the government can establish the document(s) would tend to reveal the identity of the
informer (Asarco, Inc., 14 FMSHRC 1323, 1329 (August 1992)). The burden of proof on the
government is not necessarily a high one. For example, the Commission has held that an
affidavit setting forth why disclosure of the material might tend to reveal the informer’s identity
may be sufficient (Asarco, 14 FMSHRC at 1330).

    The Secretary asserts that the identity of those who provided the e-mails to the MSHA

special investigator is revealed by their “format and content” (Complaint’s Response 2). In my
view, if this is so it ends the matter. As Counsel for the Secretary points out, “it is the identity of
the informant, not the contests of the information” — and, I would add, not the form of the
information — that is protected (Id.).

    Further, I agree with the Secretary that, except for Ms. Krock, the record does not indicate

that the Secretary, or any other person, expressly has identified any individual as an informant
nor does it show any express waiver of the privilege by any miner (Complaint’s Response 3).

                                               3

Page 4

For the privilege to be relinquished there must be a definite identification or waiver (See Thunder
Basin Coal Co., 15 FMSHRC 2228, 2236 (November 19993)). It is not enough that evidence
may suggest the identification or even may point strongly to the identification if it is conceivable
there are others who may be the informant.

    Counsel for the Secretary has suggested that to protect any legitimate privacy concerns of

the company the parties could be governed by a protective order requiring the Complaintant not
to produce the privileged e-mail messages to third parties and to destroy the e-mail messages
once litigation in the case is completed and the file is closed (Complainant’s Response 3). Alcoa
opposes the suggestion (Alcoa’s Reply 2).

     The suggestion is premature. As matters now stand, the Secretary’s assertion of privilege

is just that, an assertion. The Commission has noted that an assertion usually is not enough to
sustain the privilege (Asarco at 1329, quoting 4 J. Moore, J. Lucas & G. Grotheer, Moore’s
Federal Practice ¶ 26.60[1]). To meet her burden of proof, the Secretary must establish how or
why disclosure of the sought after e-mails will identify the informant(s). An affidavit explaining
this may be sufficient. Or, the Secretary may offer an on-record explanation and request it be
accompanied by an in camera inspection of the documents. The choice is the Secretary’s, but
whatever course she chooses the record must contain facts upon which a ruling can be based. If
she cannot establish such facts, Alcoa’s motion must be granted.

                                         ORDER

   ACCORDINGLY, the Secretary SHALL HAVE 10 days within which to supplement

her Response by offering facts to support her opposition to Alcoa’s motion to compel.

                                          David F. Barbour
                                          Chief Administrative Law Judge

Distribution: (Certified Mail)

Suzanne F. Dunne, Esq., Office of the Solicitor, 525 S. Griffin Street, Suite 501, Dallas, TX
75202

Timothy P. Ryan, Esq., Jill M. Szafranski, Esq., Eckert Seamans Cherin & Mellott, LLC, 44th
Floor, 600 Grant Street, Pittsburgh, PA 15219

/gl

                                             4